Sex, Consent, Pushiness, and Acquiescence

An interesting recent sex crime case, In re Tiemann (Mich. Ct. App. May 8, 2012). Because the parties were underage (defendant was 15 and HS was 14), consent was not a defense to the underlying crime, but it proved to be important to deciding whether the defendant could avoid having to register as a sex offender. An excerpt:

On February 20, 2010, Tiemann went to HS’s home at her invitation. They went to the guest house and proceeded to “make out.” HS said that after Tiemann removed her shirt, she protested when he tried to remove her bra and told him “she really didn’t want to do this.” Tiemann allegedly told her he had done this before and not to worry. HS said that ultimately, Tiemann removed all her cloths, digitally penetrated her, and performed cunnilingus on her. She said she told him she “didn’t want to” while he was digitally penetrating her but then “gave in because she knew he wouldn’t stop.” She claimed that during the subsequent sexual acts, she told him to stop, and he did, but then started again. HS said that Tiemann stopped completely when she told him to stop a second time. After that, they dressed, lay down on the couch together, and fell asleep.

Tiemann admitted that HS said once that they were moving too fast, but then she said that she would be okay. He claimed that she pulled him back on three occasions when he asked if she wanted him to leave. He also acknowledged that HS said she wanted to stop while he was digitally penetrating her, and he offered to leave. Further, he acknowledged that she sat up and that he laid her back down four times. He claimed that he was not forcing her during penile-vaginal sex. Further, he acknowledged understanding that she wanted to stop when she expressed that she was uncomfortable. When asked if he should have stopped, Tiemann said “Yeah, lots of times.” Finally, Tiemann stated that he felt he was being pushy when he told her to relax and be comfortable with it and that eventually it seemed that she was comfortable because it “felt like she just gave in.” However, he said he “forc[ed] it on her a couple of times” and that he knew it was wrong….

[T]he parties reached a plea agreement whereby Tiemann was to plead no contest to one [Criminal Sexual Conduct] III [statutory rape] count and the other charges [alleging force or coercion] would be dismissed. After reviewing two case report summaries of interviews of the victim and Tiemann, the trial court accepted the plea. The trial court found a factual basis for a determination that Tiemann had intercourse with the victim who was between the age of 13 and 16 (there was no mention of force or coercion).

Apparently, an initial order of adjudication indicated that Tiemann was convicted based on force or coercion. However, a corrected order of adjudication specifies that the victim’s age was the basis for the conviction….

An amendment to [the Sexual Offender Registration Act] subsequently took effect and provided that for cases pending on July 1, 2011, a juvenile could be excused from registration under the SORA under certain circumstances if he could establish consent. The trial court therefore held a trial on the issue of consent. At the trial, various witnesses were called, and HS read a statement into the record giving a more detailed account of what transpired on the night in question. In this account, she indicated that she may have acquiesced “so that he wouldn’t be so mean” but gave further indications that the sex was not consensual. Ultimately, the trial court found that Tiemann was not exempt from SORA registration requirements.

Note that to get an exemption from the registration requirement, the defendant must prove consent by a preponderance of the evidence. In a typical criminal case alleging nonconsensual sex, the prosecution must prove absence of consent beyond a reasonable doubt. Still, the common question in these cases is what counts as “consent.”