I should first of all caution that, in the now-ancient argot of the Internet, I Am Not A Lawyer. As the Simple Justice blog writes on the matter,
For those of us not indoctrinated into the new conceptions of rape and sexual assault, we envision forcible rape, a man with a gun to the head of a woman, pushing her into a dark alley where he forces himself onto her. At best, we imagine a woman passed out, unaware that the man she was drinking with earlier removed her clothing and forced himself on her.This latter is the subject of no small amount of discussion; while I can't now lay hands on the first time I read this argument, it has been observed that the curiosity of Title IX sexual assault law means that an actual rapist convicted for that crime under university procedure may go free to molest others, while the innocent man so convicted bears a very real legal scar that follows him elsewhere, without rejoinder or appeal. That is to say, the truly guilty aren't punished enough, and the innocent are punished too much.
But to others, force is only the extreme. Rape is now the word used to describe sex when a woman has had a few drinks, falls somewhere along the buzzed spectrum and decides the next day that she didn’t really want to do it, even though she was an enthusiastic participant the night before.
Or rape is the word used to describe the woman who is persuaded by a man to engage in sex, or the woman who agrees to sex, not because she wants it but because she secretly feels she has no choice. And then there is sexual assault where no touching occurs at all, from “stare rape” to the undesired “hey baby” on the street.
The question isn’t whether these behaviors are good, bad or otherwise, but whether they are, or should be, crimes. And by crime, I include college disciplinary rules, as any determination that carries a penalty is one that cannot be swept under the rug as insignificant.
The proposed law is a radical shift in English-speaking jurisprudence, though less so if one includes the abusive tactics used on the War On Drugs. (Here, I think of asset forfeiture, in which the possessions of a party are confiscated because they are supposedly involved in some criminal activity, which charge need not ever be ascertained.) The substantive material starts on PDF page 23. My particular objections:
- 213.1(1)(c)(iv) makes drunken hookups a second-degree felony retroactively if the woman so decides.
- 213.1(2)(b): a roommate who closes the door behind the couple in question upgrades the felony to first-degree crime.
- 213.1(3)(iii-iv): the right of confrontation in open court is eliminated or at least severely constrained.
- 213.4: adoption of the "affirmative consent" standard for distinguishing rape from consensual sex.
- 213.7(1)(a)(ii): rejects "beyond a reasonable doubt" needed to prove other crimes, and replaces it with the much lower "preponderance of evidence" standard. Furthermore, prior false accusations are inadmissible unless themselves proven false by the same standard.
Section 213.4’s embrace of an affirmative-consent requirement is grounded in the increasing recognition that sexual assault is an offense against the core value of individual autonomy, the individual’s right to control the boundaries of his or her sexual experience, rather than a mere exercise of physical dominance. The decision to share sexual intimacy with another person, whether undertaken casually or with great deliberation, is a core feature of our humanity and personhood and thus should always be a matter of actual individual choice. Beyond this, evolving social standards around sexual behavior have increasingly favored more open and honest expressions of sexual needs and stressed the importance, in ambiguous circumstances, of discouraging sexual intimacy without first seeking greater clarity. In terms of prevalent behavior and perceived norms of social etiquette, of course, that aspiration remains disputed, and in practice no doubt it is frequently honored in the breach. But however this may be, given that the harm of unwanted sexual imposition greatly exceeds any harm entailed in having to make arguably awkward efforts to clarify the situation or (temporarily) missing an opportunity for a mutually desired encounter, the appropriate default position clearly is to err in the direction of protecting individuals against unwanted sexual imposition.The obvious rejoinder here is that the law cannot protect anyone from any crime, only investigate and prosecute them after the fact. The law is what we have instead of blood feuds. It should be deeply disturbing to anyone even a little cognizant of how the law operates that an august organization of the American Law Institute's membership so profoundly clanks on such a basic matter.
That position finds additional support in the prevalence of circumstances that make the expression of unwillingness much more difficult than intuition might suggest. One such circumstance is the well-documented phenomenon of “frozen fright”: a person confronted by an unexpectedly aggressive partner or stranger succumbs to panic, becomes paralyzed by anxiety, or fears that resistance will engender even greater danger.240 To be sure, the individual’s passivity might signal willingness, but it also could signal simply a terrorized inability to react to the situation. To permit an inference of consent in these circumstances, when that person’s actual desires are relatively easy to clarify, is to expose individuals at risk to severe and readily avoidable danger. A similar analysis applies with respect to the frequent intersection of heavy drinking with sexual encounters. As previously discussed241 heavily intoxicated individuals often become too disoriented or “tipsy” to express their wishes clearly. To permit an inference of consent in this situation is, again, to expose individuals in a vulnerable position to entirely unnecessary dangers of unwanted sexual intrusion.So instead of recognizing that consent may be fluid and exist on a continuum, the law now is to change so as to make the default case an assumption of rape unless one has documented assent? This is so insanely at odds with how actual humans couple, it appears to have been written by Martians.
The argument has been made‐and no doubt will be repeated‐that equating silence with unwillingness, as Section 2134 does, “patronizes” or “infantilizes” women, treating them as if they were incapable of expressing their own desires.242 The charge is highly misleading. The law of sexual assault inevitably must address itself to behavior that potentially threatens extremely serious violations of bodily integrity and autonomy, and it must choose standards that seek to minimize the incidence of risky behavior, when that behavior can claim few countervailing benefits. The uncontroversial requirement that a physician obtain informed affirmative consent prior to performing surgery, no matter how objectively appropriate that medical procedure might seem to be, is grounded in a similar analytic framework. Of course, a legal standard requiring the affirmative expression of consent to sex will—inevitably—entail many false negatives, in the form of findings of unwillingness when in fact passionate desire was present. But the contrary standard now prevalent in American law will just as inevitably entail many false positives, assumptions of willingness and subsequent sexual intrusion when such intimacy was entirely unwanted. Section 213.3 reflects the judgment that the harms that arise under the latter standard present far greater reason for concern.It is significant that the authors' puerile and legalistic understanding of sex starts by likening the circumstances of even consensual intercourse to the highly controlled situation of a surgery theater. That this might be highly impractical apparently does not occur to them.
Section 213.4 allows words or conduct to transmit willingness to engage in sexual intimacy. Some scholars have urged a requirement of explicit verbal assent, noting that body language is inevitably ambiguous and a potential source of many false positives.243 Yet that standard finds no support in existing law and departs too far from current social practice. Section 213.4 recognizes the social reality that consensual sexual encounters quite frequently are not preceded by an explicit verbal “yes.” Body language such as taking off the other party’s clothes and aggressively touching him or her in an ever-more-intimate way may not inevitably signal willingness to proceed to intercourse, but it can be sufficiently clear to leave little doubt about the intentions of the person actively initiating these steps. Of course, this is particularly true between persons who have previously been intimate, and a verbal “yes” requirement could conceivably be limited to first‐time relationships. But the symbolic and practical drawbacks of a standard that formally differentiates between established and first-time relationships would far outweigh its advantages.
Wow. Where to begin? In a first encounter situation, one must always have a "yes" at each stage? And how is a man to prove "yes" was the answer given at the time if a woman subsequently changes her mind? Moreover, what if "yes" apparently came in the wake of a breakup? This is not some hypothetical instance; it is a very real and concrete case that recently came up in a Scott H. Greenfield post about an alleged sexual assault at Swarthmore College:
[George] Will raises a 2013 case out of Swarthmore College, where a student “was in her room with a guy with whom she’d been hooking up for three months”:U. Kansas law professor Corey Yung tut-tuts Will's rejection of that claim with the definitional slipperiness we see in the proposed law. And then:
“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”
Six weeks later, the woman reported that she had been raped.
In a comment to Yung’s post, Brett Bellmore provides an incisive reaction to Yung’s political myopia. The comment is so good that I reprint it in its entirety (with apologies to all involved):Which is exactly the point. Regret is not the same thing as rape. These changes define a cartoonish and infinitely elastic view of rape that expands to include even sex between formerly consenting partners. It fails to grapple with the real ambiguity of human experience. And, ironically, at a time when the War On Drugs is broadly winding down, it will result in more young black and Hispanic men being thrown into jail on sex crimes, because that's just how it works. By defining down what rape really is, its advocates trivialize the crime.
Had it been any subject other than rape and sexual assault, and had the “victim” or “survivor” been anyone but women, there would be little question but that all the prawfs would rally around the need for evidence, due process, viable definitions and the knee-jerk demand for vengeance.
- The only basis we have for believing the allegation, IS the allegation. All the circumstantial evidence (Mentioned in the account, anyway.) is perfectly consistent with no rape having taken place. We’re going to convict people of serious crimes on the basis of unsupported allegations?
The prior sexual relations DID create a presumption of consent, just as “Didn’t know him until they met in the alley” creates a presumption of no consent. So does the not immediately reporting it.
- All acts exist on a continuum. Sex exists on a continuum from voluntary to rape. THIS incident, even if the account is accurate, is awfully close to the transition point. And yet, we’re supposed to treat it as just as serious as an act as unambiguous rape?
- Believing her, she knew of a rapist at large, and didn’t bother warning anybody for six weeks? We’re supposed to treat this as a serious crime, even though SHE didn’t?
We can’t have a system where you can have sex, and six weeks later decide it was rape, and the guy gets nailed for a major felony on your bare word. That’s insupportable. That’s half the population being given a license to jail the other half.
- It was, if we believe her, a “prior” relationship by a matter of minutes. “Prior” to nobody else’s knowledge. Possibly not even prior to the guy’s knowledge. Like nobody has ever changed their mind. She broke up with him and then climbed into bed with him? Said no, and then let him have sex with her?
Doesn’t she have any responsibility to make things clear on her end? Saying “no” a second time was too much trouble? Not getting into the bed, or even getting back out of it, an impossible demand?
What conservatives are complaining about is a demand that, essentially, women be given power without responsibility, the power to jail men, and no requirement that they behave prudently or responsibly, or even in a manner consistent with the claim they’re making.