I’ve blogged twice before on the creeping criminalization of all things sexual. As I have noted many times, the goal here is not to prevent rape or sexual assault, per se. It is to enshrine radical feminist notions of consent into law so that women are considered victims, sex is considered non-consensual by default and any man can be guilty of sexual assault.
PERHAPS the most consequential deliberations about affirmative consent are going on right now at the American Law Institute. The more than 4,000 law professors, judges and lawyers who belong to this prestigious legal association — membership is by invitation only — try to untangle the legal knots of our time. They do this in part by drafting and discussing model statutes. Once the group approves these exercises, they hold so much sway that Congress and states sometimes vote them into law, in whole or in part. For the past three years, the law institute has been thinking about how to update the penal code for sexual assault, which was last revised in 1962. When its suggestions circulated in the weeks before the institute’s annual meeting in May, some highly instructive hell broke loose.
In a memo that has now been signed by about 70 institute members and advisers, including Judge Gertner, readers have been asked to consider the following scenario: “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).”
Far-fetched? Not as the draft is written. The hypothetical crime cobbles together two of the draft’s key concepts. The first is affirmative consent. The second is an enlarged definition of criminal sexual contact that would include the touching of any body part, clothed or unclothed, with sexual gratification in mind. As the authors of the model law explain: “Any kind of contact may qualify. There are no limits on either the body part touched or the manner in which it is touched.” So if Person B neither invites nor rebukes a sexual advance, then anything that happens afterward is illegal. “With passivity expressly disallowed as consent,” the memo says, “the initiator quickly runs up a string of offenses with increasingly more severe penalties to be listed touch by touch and kiss by kiss in the criminal complaint.”
That last bit will sound ominous to those of you familiar with our legal system. In some cases, prosecutors will pile up dozens if not hundreds of charges in the hope of intimidating out a plea bargain. Do we really think someone should end up on a sex offender registry for a stolen kiss? A bunch of lawyers think so.
The example points to a trend evident both on campuses and in courts: the criminalization of what we think of as ordinary sex and of sex previously considered unsavory but not illegal. Some new crimes outlined in the proposed code, for example, assume consent to be meaningless under conditions of unequal power. Consensual sex between professionals (therapists, lawyers and the like) and their patients and clients, for instance, would be a fourth-degree felony, punishable by significant time in prison.
Having sex under those circumstances can already lose you a job, a professional license, a reputation and a career. Do we really need to add prison time and registration to an act of slimy but consensual sex? A bunch of lawyers think so.
You should read the whole thing because it gets worse and worse. Stephen Schulhofer, one of the authors of this code, defends the proposal, saying the law would take a “light touch” to policing sex. I wonder if he could identify any time when when the law has ever taken a light touch to anything.
Yes most people will ignore this nonsense. But it would create a powerful tool for law enforcement to punish people they don’t like. Can’t convict a man of rape even though you “know” he’s guilty? Well here’s fifty charges of holding her hand without consent. And suddenly that “light touch” adds up to a twenty-year punch in the mouth. And I’ll give you one guess as to the skin color of the men who would be most commonly victimized.
Schulhofer compares such a law to speed limits:
To critics who object that millions of people are having sex without getting unqualified assent and aren’t likely to change their ways, he’d reply that millions of people drive 65 miles per hour despite a 55-mile-per-hour speed limit, but the law still saves lives. As long as “people know what the rules of the road are,” he says, “the overwhelming majority will comply with them.
First, the majority of people don’t obey the speed limit. Second, the claim that speeds limits save lives is dubious. Third, there have been many problems with people ending up in prison because fines and fees leave them thousands of dollars in debt from minor traffic violations. Fourth … for the love of … speeding is a fine, not a prison sentence. Speeders aren’t put on offender registries. Speeders don’t lose their jobs because they sped. Speeders aren’t barred from being near children. The comparison is totally ridiculous.
The fundamental problem here is that there is a gray area where sex is concerned. Everyone would agree that if a man forces a woman to have sex with him, that’s rape. Everyone would agree that if two people have sex with complete enthusiasm that’s not. But what if one of them drunk? How drunk? Is one party manipulative? Has pressure been brought? What kind of pressure? Does repeatedly asking your spouse or girlfriend for sex count as pressure? What if you tell your boyfriend you’re going to cheat on him if he doesn’t have sex with you?
Over time, we have moved the black area to cover more and more behavior. Having sex with someone who is passed out drunk is rape (unless he’s a man, in which case you’re the victim). That’s as it should be. Coercing or defrauding someone into sex can be rape. That’s as it should be.
But there is a growing part of our culture that wants no gray areas. Everything has to be either has to be enthusiastically consensual or it is assault.
But human beings don’t work that way. We need gray areas, including gray areas in sex. We have and should turn some of that gray into black — there was a long time where a rape victim was blamed if she was drunk. But the idea of turning all of the gray into black is the kind of absolutist idea that only lawheads and fanatics believe in.
This is often tied to reasonable-sounding questions: “Well, why should a woman have to endure a man kissing her if she doesn’t want to be kissed?” She doesn’t. But the law is a crude instrument with which to deal with these things. Any time we have tried — any time we have tried — to inject the law into complex human interactions, it has been a disaster. It has ended up destroying lives, throwing people in prison, and creating a climate of fear and distrust.
One of the NYT’s commenters:
This is a power play by people who know nothing about power other than their desire to have the power to force their vision of sexual exchanges on others through totalitarian state power, totalitarian because it superciliously uses the state to inject into ALL the most intimate adult relationships their own weird ideology, completely unrooted in biology, psychology, or sanity. The heart has its reasons reason does not know so.
Mind your own damn business. Take responsibility.
It is pathetic that this perverted nonsense is taken seriously in the name of rape. It is a perfect storm example of why american contempt for the academic and the intellectual and the professor is justified and the Emperor’s New Clothes remains relevant. The ALI isn’t what it was. It is like the founder’s grandson running the business into the ground.
We should have a debate over how we define rape and sexual assault. That conversation has resulted in enormous progress on the question. But we should not cede the floor to the absolutists and lawheads. That way lies disaster.
One final note: several commentators have joked — or said seriously — that young men should hire sex workers rather than deal with this nonsense. While I favor decriminalization of sex work, that joke isn’t funny. The same people who want to make holding hands into sexual assault want to make patronizing a prostitute into rape. They believe that all sex workers are victims and all johns are predators. And our laws — under the guise of fighting sex trafficking — are coming into line with what they want.
The people who want to keep sex work illegal are the same people who want to prosecute people for holding hands. There’s a lesson in that somewhere …