To understand the draft, please consider a most common behavior in the following hypothetical: Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of “Criminal Sexual Contact” under proposed Section 213.6(3)(a).Simply put, there is no "safe harbor" here:
How can this be? The draft explains:
Section 213.0(5) defines “sexual contact” expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched…. (Discussion Draft No. 2, Substantive Material, at 31).The offense arises because Person A failed to obtain the draft’s requisite prior “positive agreement” to the “sexual contact.” Section 213.0(3). The draft repeatedly “makes clear that when a complainant’s behavior has been passive—neither expressly inviting nor rebuking the defendant’s sexual advances, that behavior cannot be considered sufficient to show affirmative permission.” (Discussion Draft No. 2, Substantive Material, at 54) Person A’s guilt is absolute because, “feeling romantically and sexually attracted” and feeling “a thrill as their hands touch,” Person A has no defense against the accusation that the touch included the “purpose of sexual gratification… or sexual arousal.” Section 213.0(5).
At every stage of every physical relationship, the “perpetrator” is at risk with no safe harbor of any type. If the initiator got positive agreement “sufficient to show affirmative permission” (Discussion Draft No. 2, Substantive Material, at 54) to initiate a kiss, the initiator is still at risk because the accuser can always counter by asserting, “I didn’t say you could kiss me that way.” If the initiator got positive agreement “sufficient to show affirmative permission” and did the kiss the right way, the initiator is still at risk with the next identical kiss because, “I didn’t say you could kiss me twice.” The draft acknowledges that its standard “requires the fact finder to focus on the existence of consent regarding each of the disputed sex acts.” Id. and Section 213.0(3).
Objectors to the foregoing analysis might say that prosecution of these offenses and the other examples provided throughout this memorandum would surely be declined or dismissed, but that would require an assumption that every prosecutor, judge, and jury in the country would ignore the Black Letter Law endorsed by ALI.And, they note, child custody, political battles, and divorces all provide incentives to manufacture this kind of specious and unprovably false charge. "None of this is inadvertent or the result of loose drafting," they continue:
To the contrary, the intentionality of the draft ... is to create very expansive statutes and standards with a 'default position of overcriminalization.... The draft also acknowledges that it is not reflecting any existing social norm or consensus about behavior that should be deemed so extreme as to warrant criminal sanction. Instead, it clearly states that its intention is to coerce conformity to its own choice of new norms for behavior....The draft also criminalizes sexual interactions between mental health professionals and their patients, something that hitherto was merely a violation of ethical standards. And then there's the dramatic expansion of penalties for existing crimes:
In addition to creating new offenses, other offenses are elevated up to and including life imprisonment for “aggravating factors.” For example, Section 213.8 elevates rape to the level of first degree murder if the rape occurs in conjunction with a commercial sex act. Section 213.1(1)(b) elevates rape to the level of first degree murder if the rapist utilized a lookout. Many other elevations are found throughout the draft without any demonstration of need for even longer sentences in a prison system that is already over-burdened with geriatric prisoners.It's hard to overstate just how horrible this is, but the signatories here have done a tremendous favor to the country with this essay. I look forward to more detailed analysis to come.