Here's a problem I plan on posing, in one form or another, in my Criminal Law class. My pedagogical goal is to have students (1) reflect on some of the general policy debates in rape and sexual assault law, (2) think about how the law on the books translates into law (and behavior) in reality, (3) think about what unexpected and possibly unintended consequences laws could have, and (4) think about how hard it can be to draft laws that focus just on the intended targets. I'm not trying to get students to The Right Answer, but to lead them to think more about the subject. In any case, I thought I'd pose the problem here, both since I thought some readers would find it interesting, and as beta testing.
California Penal Code § 243.4 provides:
(e)(1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.
(2) As used in this subdivision, "touches" means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim....
[(g)](1) "Intimate part" means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.
(Assume that the law applies whenever the defendant was reckless about whether the touching was "against the will of the person touched," which is to say he "consciously disregards a substantial and unjustifiable risk that the material element [the act's being against the will of the person touched] exists.")
Alan and Betty are on their third date. On the first two dates, they briefly kissed. On the third date, they come back to Betty's apartment, and sit for a while on the couch, consensually kissing. Alan, thinking that Betty might be interested in something more than kissing, starts caressing her breast. She pushes his hand away. He feels embarrassed, the mood is broken, and he leaves.
(1) Has Alan commited a crime?
(2) Do you think he deserves criminal punishment?
(3) If you think Alan has committed a crime, what should he have done to avoid it? Do you think it's good for the law to require this?
(4) Do you think the law needs to be changed, and, if so, how?
(5) How does the law in practice deal with this situation? What do you think about that?
As you might gather, I would especially like to hear women readers' answers. I'd also like to hear men readers' answers, but in my experience that's easy enough to get on the blog, so that's why I'm particularly asking women to chime in.
As long as the reckless requirement is interpreted relatively liberally, I don't think there's a problem with the law.
The issue with the law that leaps out at me is that at least the part you excerpt doesn't define what the "intent" means: intent to touch, or intent to touch in a way defendant knows or reasonably should know will be against the will of plaintiff.
You ask us to assume that defendant being reckless in regards to the plaintiff's wishes would lead to a violation of the statute. Is there statutory language supporting that, or some other "know or reasonably should know the touch is unwelcome" rule? If there is language supporting that, the law is pretty much like tort battery law, with the obvious difference that the California law is criminal, not just civil. And in which case, I think the answer of Female Law Student is right.
And by the way, ejo, I teach hypos almost exactly like the one EV gives when I teach battery and the consent defense in torts, and I've never had a problem with it.
Perhaps:
(1)(A)Any person who:
(1) touches an intimate part of another person,
(2) with conscious disregard of the substantial risk that the touching is against the will of the person touched, and
(3)does so for the specific purpose of sexual arousal, sexual gratification, or sexual abuse,
is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.
If he continued snogging and tried for intimate touch again, he gets much closer to reckless. If Betty has to call a stop to the snogging because he's grabby, he's definitely reckless.
(4) The law needs a specific clarification: If people are in close friendly physical contact but not yet touching intimate parts, the unwanted touching of intimate parts is not reckless until clear indication that touching is unwanted is given.
What about changing your hypothetical to after Betty pushes Alan's hand away, they continue kissing for a few minutes, and then Alan again starts caressing her breast, she again pushes the hand away and the mood is broken, etc.
It seems there's a better argument that the 2nd touching may be reckless, and thus a technical violation of the law, which allows deeper discussion of your policy questions.
Good point (one which I think answers AC's point). Just shows how pig-ignorant I am of criminal law rules.
True, if Alan sincerely thinks, "I am God's gift to women, so of course Betty wants me," then he's not reckless. Or if he sincerely thinks, "I am very good at reading signals, and I am completely confident from Betty's behavior that she wants me to touch her breast," then he's not reckless. But say that he knows that she might or might not be interest, and figures that the way to tell is to try. What then?
In tort law, a sincere belief that "I am God's gift to women" isn't a defense to a battery along the lines you describe, because the idea is that defendant's belief has to be objectively reasonable.
I think looking at Alan's conduct is likely to devolve into a discussion of recklessness. Doesn't the MPC define recklessness as "The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation."
Alan's actions don't seem like a "gross deviation" under the circumstances, at least to me.
Prosecutorial discretion.
In the real world, Betty is extremely unlikely to try to have Alan prosecuted. But if she did try, it is unlikely that a prosecutor would decide to bring the case.
Perhaps one could argue that Alan should get verbal permission. Perhaps that is ideal. But I do not think that most people would be greatly disturbed by his action, which seems to follow "naturally" from consensual kissing. The important thing is that when Alan found out that his advances were unwanted, he stopped.
In reality, there is no thing as perfectly crafted law that creates ideal results in every situation. But in California, District Attorney's are elected. If they exercise their prosecutorial discretion in unreasonable ways, they can be removed from office by the voters.
To answer you question:
(1) Alan has committed a crime.
(2) Alan is risking criminal punishment. But the social context is such that criminal punishment is extremely unlikely. He deserves punishment in the same way that a driver of a car deserves to be injured in an accident. When you drive a car, you should know that there is a small chance of an accident. You don't deserve to be injured for taking that risk, but we should not be shocked as a society when that known risk comes about. Alan does not deserve to be punished, but there is a slight risk that there could be an unfortunate accident. Welcome to life. No risk, no reward. Deal with it.
(3) It is reasonable for Alan to go ahead and violate this law, just as it is reasonable for a pedestrian to go ahead so. But, just as a jaywalker must contend with the risk of and jaywalk in a situation where it is entirely safe to do being an accident victim or getting a ticket, Alan must contend with the risk (much smaller than the risk of getting a jaywalking ticket or getting hit by a car actually) of being prosecuted for breaking the law.
(4) The law does not need to change. For this hypothetical problem to actually result in punishment, many things must occur. You must have Betty come forward with a complaint. The prosecutor must decide to bring charges. There must be evidence beyond a reasonable doubt. A jury must decide to convict. It is very unlikely that Alan's actions will result in criminal punishment. And even if Alan's actions did result in criminal punishment, it is likely that he would only get a slap on the wrist. We as a society need not obsess on devoting large amounts of resources on eliminating such a small risk to Alan, which is very unlikely to come about. We would be better off devoting our resources to lowering the risks to car accident victims (where over 40,000 die each year), to making workplaces safer, and to lowering the number of deaths to soldiers in Iraq. We should not waste scarce resources trying to eliminate this miniscule risk to Alan.
Further, it should be noted that if a DA brings charges that the community feels is unwarranted, they can have the DA removed from office in the next election. (Also, it might be possible to recall DAs in California. If the Governor can be recalled, why not the DA? I am too lazy to look up the law on this point right now, however.)
Resoures should not be devoted to change a law to eliminate what is only really a theoretical rather than actual risk. The law should remain the same.
(5) In practice, Alan is not going to ever be prosecuted. It is more of a theoretical possibility than an actual risk.
If rather than not knowing, he affirmatively thought she wouldn't want it, for example that there was a 75% chance she wouldn't and a 25% chance she would, but still gave it a shot, then I think there's a bigger problem. I think he shouldn't do it, but I don't think that in the specific circumstances you lay out it would merit a misdemeanor sexual battery conviction, assuming he stopped immediately...
I don't see why it is ridiculous to ask before groping someone for the first time. Just because someone wants to (or is willing to) kiss you, doesn't mean they want you grabbing their ass. I personally wouldn't appreciate it if a woman decided to grope me without my consent merely because we were kissing.
One can argue that it is less exciting when consent is given first. It takes some of the suprise away. But that is what subsequent dates are for. There is nothing unsexy about good communication.
Is an apparent willingness on the part of the girl a factor here? Context matters. A caress to an unfamiliar co-worker is not the same with someone who's accepted a degree of intimacy with Alan. It seems to me in Alan's situation, the move to second base can be seen as a natural progression of their relationship.
Given the situation Alan was in, and that the girl participated in setting up (non-sexual touching, hugging, kissing, alone in their room), it is not reasonably obvious that the touching would be unwelcome, as in the case of a casual co-worker.
If Alan can't make a move, then the girl can't either. Are they supposed to wait for the other to speak up and say: "Ok, these are the areas you can touch me, until further notice."
Your comment to "female law student" does not state whether it is addressing whether it is ridiculous for the law to require someone to ask before groping for the first time, or whether it is ridiculous for etiquette to require this. I think that it would be ridiculous for etiquette to require this, in the circumstance of this particular hypothetical, so, a fortiori, I think that it would be ridiculous for the law to require it. Also, you load the dice by using the word "groping."
I think we also often overlook discretion at the level of law enforcement, and how this effects the criminal law on the ground. In my neighborhood in San Francisco, for example, plenty of guys and girls like a bump of cocaine with their cocktails, and the Asian "massage" parlor and CraigsList "erotic services" industries are vibrant. Everyone knows it, too, cops included. But as Holmes taught us, what's legal is what you can get away with.
My sense is that women don't want men to ask permission and will get annoyed if their man doesn't proceed as quickly as they would like.
But suppose she did and the prosecutor did. Stranger things have happened, and the man in that situation should not have to rely upon prosecutorial discretion.
GvR fan: I generally agree that subjective beliefs can't be known reliably. But unless Alan just makes up behavior on Betty's part (e.g., "she told me to touch her there"), then I think most jurors will assume that he was aware of a substantial risk that she didn't want it.
Few men really believe, I suspect, that of course they can read the woman's mind and they're 100% sure that she's interested in this situation (at least unless she's already enthusiastically done this with the man before). Rather, they recognize there's some risk that she doesn't want this step, at least on this occasion. Wouldn't it take a lot of smooth talking for Alan to persuade you, as a juror, that he was completely confident that Betty wanted this step, and wasn't aware of some material risk that she just wanted to stick with kissing this evening?
(None of this, of course, goes to the normative questions of whether the risk is unjustifiable, and a gross deviation from the behavior of the law-abiding. We're just talking here about the purely factual question of what he believed.)
We shouldn't have been that willing to much so much discretion in the hands of prosecutors even in the days before Nifong.
We shouldn't have been that willing to much so much discretion in the hands of prosecutors even in the days before Nifong.
So not only is Alan Guilty, but according to the MPC Betty is also guilty of Conspiracy and probably A &A!
**
On a serious note,
(1) yes-- Alan is guilty of violating the statute.
(2) Of course not, "punishment" would be incredibly stupid.
(3) The statute ridiculously requires a rational actor to get specific intent, otherwise one would not be able to ensure they were acting legally. [part b] Of course this is ridiculous.
(4) Yes the law needs to be changed. I would offer that a simple change of wording from:
"... ,if the touching is against the will of the person touched"
to:
" ... ,if that person knows or should reasonably know that the touching is against the will of the person touched,"
(5) Throw mud at Betty and hope something sticks...
Yes, actually, I have.
In practice, Alan is unlikely to get prosecuted, let alone convicted, even if instead of "He feels embarrassed, the mood is broken, and he leaves," he subsequently penetrates Betty.
intent= consentAnyway, I'm off topic.
I guess my response to the hypothetical is
a) yes he has committed a crime
b) no he does not deserve criminal punishment
c) the only way to avoid it is to specifically ask before each touch, or at least before the "first base" touch and then before the "second base touch" etc. No, I don't think the law should require this.
d) The law should be changed, but I'm unable to come up with a fix. Honestly, I would say that after the first step of sexual contact has been consented to, the male would need some affirmative reason to believe that further contact is NOT wanted before it becomes a crime. For example, he touches breast and she pulls away. Anything AFTER that is a crime, not the initial try.
e) in practice: prosecutorial discretion.
As for slapping his hands away repeatedly, again I believe the social custom most generally followed is that when the girl no longer welcomes the boy's attempt at 2nd base, she ceases the kissing activity.
I'm very worried about the state of sexual assault law today. We seriously risk trivializing rape, a truly horrific crime, by inserting the law into the realm of proper sexual manners.
There is a [somewhat] well understood 1st Base / Second base / etc. At each stage, there may be a "No further, if fact, you just wen one step too far" Jumping the queue would be a significant change of facts...
I also do recall back from an eon ago, specifically being dressed down by an attractive lass for backing down to quickly. Meaning that despite feminist theory, *some* leeway ought to be given.
I am guessing that what you want your students to think about is whether the statute as written is reasonable. IANAL, but my sense from the other comments is that it defines essentially the whole range of "foreplay" (for the sake of brevity) as something for which the initiator must be sure of the subject's willingness. This isn't how things work in real life, and thus society relies on (as mentioned previously) prosecutorial discretion to avoid swamping the courts with every possible case that could be brought under that statute, which would be roughly one for every date occurring on any given evening.
The law needs to be changed to more narrowly define the conduct being proscribed (unless the intent is indeed to require people to literally ask for intimate touching)
This is a tough area.
IMO, a woman who is doing X in a petting/necking situation (no other people around, enjoyable kissing, and other romantic stage dressing) should be presumed to have given the signal that she will accept the next step (x+1) one time without recrimination. She may resist, in which case, he's on notice. Or she may not.
To presume the next step is forbidden until expressly approved in advance is not in accordance with human nature.
I'm sure we will recall when the First Horndog groped Kathleen Willey, the fems' response was one-free-grope. "He stopped, didn't he?"
Let me recall to you the success of the romance novel genre in which the male lead does not ask. If he does, the book won't sell. See Sommers, "Who Stole Feminism" on the subject.
As a friend of mine once said, if dating did not contain some ambiguity, it wouldn't be any fun. Ambiguity means sometimes things don't go as you anticipate and hope. But it's not a crime.
Several commentators seem to agree with Mr. Impressive, however I find this theory completely unrealistic. Is it realistic to expect people on a date to ask for and receive permission at each escalation of physical contact? Should one seek permission prior to touching hands? What about holding hands? What about putting your arm around your date’s shoulders? What about the first kiss and then subsequent kisses (French kissing)? And when things become more intimate does each partner need permission before engaging in each additional sex act? Such a requirement would completely eliminate all spontaneity.
Alan could only be guilty if he is "touching is against the will of the person touched." Betty has a duty to indicate her own "will" -- her intention. Unless Betty has indicated that she doesn't want anything more than kissing, the prevailing social custom -- the presumption of non-recklessness -- in urban middle-class society in 2007 is that kissing is a preamble to more intimate touching. So Alan would be on sound ground and would not have committed a crime because the law doesn't apply in situations like this and wouldn't until Betty has clearly indicated her will.
Of course if he repeats his touching after her demurral, then that might change my conclusion, but it would be fact dependent on whether they continued talking, kissing etc etc
Does this mean sexual arousal/gratification of the toucher or the touchee? (I assume sexual abuse is of the touchee, not the toucher.)
A gay man grabs a woman's breasts and says "these are gross," and the woman is neither consenting nor abused (is that a tricky combo?). If the statute means the toucher, no violation of the statute because the gay man had no personal arousal/gratification purpose. If the statute means the touchee, then violation only if the gay man intended to arouse the woman?
A straight man grabs a sleeping woman's breasts for sexual gratification of himself, and the sleeping woman is neither consenting nor abused. If the statute means the toucher, violation of the statute because straight man had personal gratification purpose. If statute means the touchee, no violation because sleeping woman cannot be aroused so the man cannot so intend.
Moral: Mountain or molehill? Consider the eye of the beholder!
Actually it was the code of conduct at one Antioch College, which recently shut down (shockingly). One positive from that policy was it was the subject matter of a hilarious Saturday Night Live skit with the late, great Chris Farley and Shannen Doherty. From reading some comments here that sentiment lives today. I can't imagine any guy (so yes I'm calling Mr. Impressive a fibber) who would be upset, let alone consider it a crime, if his date behind closed doors who he was kissing at the time touched him in the groin region. If the guy didn't want it to go any further (read, he's nuts) and brushed her away that's one thing...which is similar to the hypo. I can't imagine too many people saying with a straight face that a crime occurred if the genders were reversed.
Now it may well be that the risk is not unjustified, for the reasons others have mentioned. But if it unjustified, then his thinking through the problem, and becoming conscious of the risk, is what likely makes him reckless.
Bellatrix79: (1) As I understand it, it's enough if it's for the sexual gratification of either party. (2) But if the purpose is something else -- for instance, just to hurt or annoy, but not to "sexual[ly] abuse," whatever exactly that means -- then it's not sexual assault, but likely some sort of other crime (battery of some sort).
Sexual Consent Video
It was strange to see the dramatic episodes of our first-year class documented in the Yale Law Journal, for sure. The professor used pseudonyms in referring to the students, of course, but naturally everyone in the class knew exactly who he was talking about. Oy, the drama.
Wanting to be a good guy, and to be different from all those other guys, and presuming, given the situation, that she'd been groped enough for six women, he stayed his hand, so to speak.
His description of her impatience had us rolling on the floor.
I believe they got over that issue, but they parted some time later.
Point is, this is a stupid place to subject to law. Nobody has a clue. Not the guy. Not the woman. Certainly not the rest of us.
How the heck is a poor guy supposed to figure out when "no" really means "no" and not "try again later - I don't want to appear too willing"?
How? It indicates that she was interested in what she did, says nothing about her interest in anything else. His presumption is just that: presumptuous projection of his desired meaning onto her actions, not any actual meaning from her. Consent only applies to the consented-to-act in all specifics: time, place, who with, how, duration, etc. It's not transferable, and it doesn't imply consent to any other specifiable act.
That pithy "no means no" saying gets it wrong. Anything other than a proactive unequivocal "yes" means no.
As far as how the law actually works, yeah, she was wrong. As far as how the law should work, she was absolutely right.
This type of sentiment is the basis of my moniker. Are you even remotely serious?
Concur with female law student. I don't think that there is a substantial risk that this is against her will. She's not passed out, she's not pushing him away from her or trying to get him to stop kissing her, and she has not made her wishes known.
(2) Do you think he deserves criminal punishment?
Given my answer to #1, no.
Also, given my libertarian leanings, I would much prefer to settle these things without the interference of the criminal justice system. ;)
(3) If you think Alan has committed a crime, what should he have done to avoid it? Do you think it's good for the law to require this?
Now, I'm all about communication, but the law, if it were to punish Alan and others like him, would require an almost insane amount of discussion. "Honey, is it okay if I touch you there? For how long? What about there [points]? Okay, not now, maybe later?"
As EV brings up elsewhere, if Alan thinks that he is God's gift to women, he would not have the requisite mens rea for this. Sadly, there are a lot of men who think that way, and, in my experience, are the ones who cause the most harm. The end result is that the ones who act the most "recklessly" (objectively) are the ones who lack the requisite mens rea for this crime, while those who are the most considerate of a woman are the ones who would be punished (for recognising the risk in the first place).
(4) Do you think the law needs to be changed, and, if so, how?
The law applies the same way to someone like Alan as to someone who attacks women on the street. It applies equally to those who remove their hands immediately and to those who keep trying. I'm not sure how you would re-write the statute to encompass those who, after being rebuffed, grope their dates again, but to exclude those like Alan who stop. I also do not know how to re-write the law to punish those who grope women that they do not know while not punishing those whose behaviour is objectively appropriate (or, at the very least, not inappropriate).
(5) How does the law in practice deal with this situation? What do you think about that?
In reality, I don't think any woman would report it, because, as hurt as she may be, she wouldn't want to ruin the guy's life over it. Even if she did report it, no jury would ever convict the guy.
Cynical answer to the latter question: no man on this planet would think that such is an unjustifiable risk. That which is justifiable to Alan (due to the potential payoff) is not necessarily justifiable to Betty (due to the potential for harm).
"Your honor, my client is a cultural byproduct of the advanced feminist learnings of the 21st century. He has been well versed and indcotrinated in the current feminist ideology and he agrees with it, as do I. He loves woman. He honestly thought after three dates he was falling in love with this woman and she with him. His act of touching her supple and inviting left breast (pointing to oversized picture of exposed breast as Exhibit A) was merely an act of physical love done with the purpose of arousing a feeling of sexual arousal and gratification in HER. He was attempting to arouse her, not himself. Everybody knows, and his honor can take judicial notice of this fact, when it comes to intimate sexually related touching, it is always better to be on the receiving end of such things - better to be the one touched than to be the one doing the touching- although admittedly being on either end of a sexual touch is better than no sexual touching at all. Whatever future perceived or intended incidental sexual benefits to himself that may have arisen if my client would have succeeded in arousing his partner is left to speculation and conjecture and is not reached under the facts of this case."
"I will now leave it up to the State to argue in rebutal how it claims to have proven or offered any evidence that the exact motive my client had in reaching his hand up and touching the complaining witness's breast in the midst of a mutually agreed makeout session at her home after their third date was solely for his own intended benefit" "I think you will plainly see, the State's argument that it was purely for his own sexual gratification and arousal applies just as forcibly to my argument that it was purposedly intended for hers. All things being even, it may well have been the case that he had the dual purpose of both arousing himself and at the same time gratifying and arousing her; which may have led to her returning the favor back to him. Regardless, he did not touch her with the sole purpose of his own sexual arousal or gratification. Proof beyond a reasonable doubt is in question as the statute plainly makes clear that a crime has been commited only when the person doing the touching does so for their own personal arousal, gratification or abuse; and not when the act is one of benelovence toward another in helping them achieve a state of sexual arousal and gratification. An aquittal is thus warranted under the facts, an apology to my client issued forewith, and a thank you card for putting her needs above his own would be much appreciated."
Yes. Why wouldn't I be?
Just to be clear, I assume your reasoning works both ways and applies to lesser forms of sexual touching than rape? If a woman reaches down and cups a man's groin through his clothing in the midst of serious kissing, is that sexual assault, assuming he didn't want her to?
My main concern was the courtesy of the situation since the last explicit verbal permission ends when one person's invited into the other's house. There are other implicit signals and permissions that can be misread along the way, like the move from first to second and so on, but I geenrally think that they are given.
I wonder if those body language assents are considered legitimate consent, however. (Although, I guess one can mishear verbal consent too).
Maybe it should make it absolutely clear that after being rebuffed once, any further attempts are criminal.
I think the problem is that these things tend to escalate from reasonable to unreasonable. An absolutely clear rule would be beneficial to men who do not want to break the law.
Maybe the law should go into this specific situation. It is common enough.
Does anyone have a problem with a law phrased as follows:
"If two individuals are kissing, then either individual can touch the other on the buttocks, genital area, or female breast area to determine whether such contact is desired by the other party. However, once rebuffed, physically or verbally, the individual who was previously previously rebuffed may not make such contact again absent unambigious verbal consent."
I think something that removes ambiguity and is consistent with our culture would be very helpful in preventing escalations that end in rape. I do not have a problem with people moving forward once absent explicit verbal consent. But I think that there needs to be some sort of clear line for the benefit of both parties. Minimizing misunderstanding is a good thing.
Oh, I don't know, maybe because a woman can claim I raped her notwithstanding that I can prove I was in another city at the time, but because she said "a rape occurs" and I was the accused therefore I must have raped her. Nifongery!!!
Seriously, you can't be serious.
1) This is a good opportunity to remark on the desireability of sliding one's hand across a woman's body in lieu of grabbing. The progress of a hand can be arrested before the intimate parts themselves are reached.
2) With non-verbal communication of this sort, it is difficult to know whether no means "never" or "not right now." If the attempted breast-grope came thirty seconds into the smooching and was rebuffed, the message behind the denial might just be "slow down," and, contra some of the above comments, it might be reasonable to reinitiate after kissing has continued for some time and arousal has increased.
1) This is a good opportunity to remark on the desireability of sliding one's hand across a woman's body in lieu of grabbing. The progress of a hand can be arrested before the intimate parts themselves are reached.
2) With non-verbal communication of this sort, it is difficult to know whether no means "never" or "not right now." If the attempted breast-grope came thirty seconds into the smooching and was rebuffed, the message behind the denial might just be "slow down," and, contra some of the above comments, it might be reasonable to reinitiate after kissing has continued for some time and arousal has increased.
Incidentally, though I'm a feminist, I've got to disagree with Steve and Mr. Impressive. The risk this guy would be charged is really low, but that doesn't mean it's acceptable to ban all sex (which is practically what a requirement that all consent be verbal amounts to) and rely solely on prosecutorial discretion. Nor is the "if she says it's rape, it's rape" test an acceptable legal standard, since it makes being accused equivalent to being guilty.
The real punishment is 10-20 years of having your name, address, employer's name, and employer's address listed on Internet sex offender registries. You will be treated like a child molester. Obnoxious neighbors like Linda C. Schultz of Fond du Lac, might post your picture in your neighborhood and otherwise harass you.
Few employers will want to hire you because hiring you means their name gets put on the Internet sex offender registry, too. You also might be forced out of your family home if you live within 1000 to 2000 feet of a school, day care, bus stop, etc.
As to EV's recklessness point, he's right in theory that a man who believed he was God's-gift-to-women defense would not be reckless, but that really only matters to a theoretical jury. Anyone who tried that defense would piss off the jury so much he wouldn't have a chance. The jury would decide that the defendant's arrogance demonstrated his recklessness. And then the judge would hammer the guy extra at sentencing.
We don't know. The statute requires that it be against the will of the person touched, but we don't know with any certainty what Betty was thinking. She pushed his hand (it does not say how forcefully, or why), and it was Alan who subsequently broke off further interaction.
Oddly enough, it is Betty's state of mind, not Alan's, that determines whether the act was criminal. Was Alan being reckless? Was Betty?
(2) Do you think he deserves criminal punishment?
No.
(3) If you think Alan has committed a crime, what should he have done to avoid it? Do you think it's good for the law to require this?
The only way for Alan to be certain of not commiting a crime is to entirely avoid touching Betty. Asking detailed permission every step of the way would greatly reduce his chances, but it would be almost impossible to phrase the question so as to categorically exclude all liability. I can see a "I said ok, but I didn't mean exactly like that" sort of argument. Remember, the statute makes no allowance for reasonable (or unreasonable) beliefs of the toucher.
I do not think it is good for the law to require this.
(4) Do you think the law needs to be changed, and, if so, how?
The law probably needs to be changed. I can see two ways to do it.
We could add a phrase about reasonable expectation to this particular statute.
Or, there could be a general rule that concepts like "against someone's will" require some reasonable level of notice or pass some other hurdle in order to create criminal liability.
Come to think of it, the problem with the law may be part of a potential solution. Although it is Betty's desire, not Alan's intention, that creates the crime, a conviction would require proving beyond a reasonable doubt that the touch was unwelcome. How can Betty prove that prior to the time she pushed Alan's hand away the touching was against her will? Can she present evidence that it was not what she wanted?
(5) How does the law in practice deal with this situation? What do you think about that?
Prosecutorial discretion. Also, and more frequently in cases like this, discretion on the part of the supposed victims.
I think prosecutorial discretion is often a very good tool in practice but it is theoretically sloppy.
Victim discretion is also sometimes a good tool that ends up creating a number of less than ideal results. In the Alan and Betty hypo, I think the extremely low probability that she will file a complaint usually results in a workable real-world situation. In more extreme cases of rape and domestic violence, underreporting is a huge problem.
I am not denying that it might be appropriate to proceed to get intimate again after being rebuffed once. But why not require verbal consent after one clear rejection?
It seems to me, that if you have to reject the guy or girl for going too fast once, they have already "ruined" the romance such that requiring verbal consent after that point before continuing does not seem that much to ask.
If we lack some sort of standard, where are we left? If after being rebuffed, you can try again an indefinite number of times? I think a clear rule that is easy to understand is preferable. I think that ambiguities create a risk of misunderstandings that could turn out very bad for both parties.
What if the woman doesn't say it's rape until after the sexual act is completed? How soon after the sexual act does she have to decide it's rape? In your belief system do no women ever lie about rape?
Maybe I just have really, really low standards for male behaviour. I completely agree (and have had many problems with men who do not so understand) that one can enjoy the present activity and not want to go further.
Perhaps I misread "substantial" risk. To me, if there is a 1% chance that a certain action will cause death, such is substantial (calculating the expectation value), although not probable. Likewise, as the harm is relatively low (she'll probably be a little upset - I know I would be - but, IMHO, anyone who would be really upset would probably communicate that to a guy beforehand*). I believe we are saying the same thing (low risk, but relatively high probability that she doesn't want to go further) - I'm just not expressing myself well.
*Not much upsets me, but, when I've communicated boundaries to men, it is extremely upsetting when they are crossed. I'm not sure that all of it is necessarily criminal; a bitch-slap would take care of the problem quite nicely.
I disagree. In reality, a jury who believes that they guy thought about his action is less likely to find him reckless than if the jury decided the guy didn't even bother to think about what she wanted. Unless, of course, the guy gets a jury of criminal law professors.
An interesting (and useful) law review article would examine what jurors really think "reckless" means.
What is worse, being prosecuted but having the charges dropped and the prosecutor disbarred, or dying in a car accident?
It seems to me, that dying in a car accident is worse. Yet this occurs over 40,000 times a year in this country. The botched Duke case happened exactly once.
Yes, there is a cost to giving prosecutors discretion. That cost is that sometimes the discretion will be abused. But that is why we usually have elections for DAs and also why we have rules of ethics that they must follow or risk disbarment. Really, the Duke case is about the system working, not vice-versa. The prosecutor in that case was disbarred.
Does prosecutorial discretion have costs. Yes it does. But so does driving.
What are the benefits of prosecutorial discretion?
In most instances, prosecutors do not bring cases when it is not sensible to do so. Prosecutorial discretion allows laws to be written in a broader fashion, minimizing loopholes for dangerous criminals to exploit. Furthermore, some overbroadness is inevitable when it comes to lawmaking. It is impossible to imagine every situation when the literal text of a law may apply. It is prosecutorial discretion that keeps the law from being applied when to do so would be both unjust and contrary to the intent of our elected legislators had they thought of the specific situation.
Is prosecutorial discretion a complete substitute for careful drafting of criminal laws? Of course not. But it really is a necessary thing, given the impossibility of writing laws perfectly, such that they could be applied in a completely mechanical discretion free manner.
So, even though prosecutorial discretion has costs (i.e. sometimes it is abused) it also has large benefits and is in fact indispensible to a sensible criminal justice system. Do not be irrational. Yes, there will be incidents like the Duke case. You can count on it. There are always costs. Likewise, 40,000 people die each year because we have not outlawed the automobile (this is much higher than the costs of misused prosecutorial discretion). But there are huge benefits to allowing people to drive. And there are huge benefits flowing from prosecutorial discretion (ie. fewer dangerous criminal let off because of loopholes in an impossibly complex criminal code, people who should not be prosecuted are prosecuted because of flaws in the code, etc.).
I know the Nifong case is emotional, but you cannot allow it override rational thinking. Prosecutorial discretion is a good thing.
Your right. We probably should limit it to prolonged mouth-to-mouth kissing.
This goes to Elliot Reed too, although I should point out that I'm Steve2, and then there's also a "Steve" who is a different Steve. It was once a very popular name, although apparently fewer boys get it than used to (I read a list, can't vouch for its accuracy, that said "Steve"-varients were the #2 name for U.S. boys in 1980. Also, see Project Steve).
Anyway, I was imprecise: you've outlined the one valid (in my mind) defense to a rape accusation. Namely, factual non-happening of the alleged act. If the sexual contact can be proven, then yes, the statement of any party that it was without their voluntary consent ought to be definitive and binding. Unlike you, Elliot, I believe the strict infraction treatment of mens rea is appropriate for sexual assault, although I disagree with the mens rea principle generally.
KMM, in answer to your question, yes. Unwanted sexual contact is unwanted sexual contact.
As I see it, everyone (adult, mentally competent, etc. for the sake of nitpickers, though I think that too obvious for words) has the right to as much consequence-free sex as they want but that right is superseded by everyone's right to be free of any sex they don't want, and I believe the law should enforce that. Which is why I oppose anything that poses a barrier to contraceptive access, to STD vaccicnation, or to rape prosecutions and convictions.
I've also noticed that "rape" and "sexual assault" have become trivialized to the point where men must live in fear of inadvertantly committing a serious sex crime. Is this what we, as a society, really want? Should it be possible to become a registered sex offender for inadvertant or unintentional behavior?
This kind of trivialization is happening elsewhere, too, with "hate" laws restoring blasphemy laws and copyright laws interfering with normal behavior. If the law becomes absurd, then no one will respect it...
EI
I've lived in California since the Fifties, and I never encountered these problems. I just kissed the woman and if she didn't reject that, I'd ask, after a while, whether she would like to make love. I never encountered a rejection--which may indicate I was good at selecting female companions who would reciprocate, but perhaps not, since the majority of my lovemaking happened in the Sixties and Seventies, the era of relatively unbridled free love when there was no shame attached to engaging in sexual relations outside marriage. I slowed down--because of age and Aids and an overwhelming attraction to alcohol--in the Eighties, but still used the same approach. It still worked. Now, 20 years free of alcohol, I'm in an 18-year relationship and have learned sexual fidelity and loyalty to my partner through love.
How would your analysis change if Alan and Betty had been dating for 6 months?
What if they were married to each other?
What if Betty was an exotic dancer performing a lap dance for Alan?
With due respect, I think you should calm down. Your claims do not really hold water, and in my view are excessively emotional.
First of all, what is "normal behavior." Personally, if someone wrongs me in some way, I tend to what revenge. Is this "normal" to feel this way? It is not "normal behavior" to act on my feelings?
Second, subjective feeling and perceptions are critical in law. The difference between first-degree murder and manslaughter is subjective feelings and perceptions. In one case, I actively and with malice aforethought killed someone. In the other, I accidentally killed them (or in the case of voluntary manslaughter, was seriously provoked and killed them in the heat of the moment.) The consequences of these different "subjective feelings and perceptions" are very high and rightly so. In one case, the punishment might be the death penalty and in another the punishment might be a few years in prison.
There is no escaping it. Subjective feelings and perceptions matter. We do not think that someone who kills someone after finding out that that someone has raped his child is a culpable as a killer who contemplates someone's ambush and then murders them execution style.
Apparently, you do not disagree that rape is a serious crime. But, of course, the difference between rape and consensual sex is consent, which will be forthcoming or not based on subjective feelings and perceptions. Does someone subjectively desire to have sexual relations with you or not. If not, they presumably will not consent.
I think your fear of inadvertently committing a serious sex crime is an important one. That is why I think we probably should do more to make these laws less ambigious. But to make the laws less ambigious, we have do exactly what you "despair" of doing. We have to incorporate these areas of human relations more explicitly into the law in order to remove ambiguity.
You obviously agree that a stranger should not be able to grope complete strangers or unwilling acquaintences. How do you differentiate between that and consensual relationships? By asking whether or not there is consent, of course. But how do make consent less ambigious so that you can feel comfortable and avoid inadvertently committing a sex crime. There is only one way. By getting more specific about how consent can acceptibly be manifested when we write these laws.
What lament about is solved by doing exactly what they do not want to do. By being more specific.
Here's the deal. You aren't talking about going from X to X+1. The plus one would be from closed-mouth kissing to open-mouth kissing. Open-mouth kissing to the torso grope. Not from closed-mouth kissing to crotch grab.
Now, if you don't think that should be the case, lots of luck.
EI: Do you also worry that you could inadvertently upset a woman and cause her a great deal of anguish?
As for false accusations of rape - those things tend to not happen to you if you don't sleep with women whom you don't know. (For those unfortunate enough to be Nifonged, well, thankfully, we live in the age of DNA testing.) Tacky behaviour having all sorts of consequences and all that. (Not to say that one ought to be criminally liable for being a cad; just saying that these things aren't very hard to avoid.)
1) No crime has been committed, because the 'breast' element only applies to women.
Should the breast element be applied to men? The nipples in men are actually very sensitive to touch and in fact are often a part of sexual play among gay men. So if the law were to be consistent, it should include breasts for men, or at least gay men.
No one answered the question about a gay man touching a woman's breasts. Obviously, he wouldn't find the issue erotic or gratifying in any way, yet the woman might still be offended. I guess that falls under simple assault.
And what if Alan is kissing Betty, but he's really a closeted gay man -- so he pretends to be excited by touching her breasts but in fact is not? Is pretense enough for the mens rea? Or would that be a defense?
Touching Betty's breast was justifiable within the context of the encounter (a third date, finishing up at her apartment, with previous "first base" touching). In those circumstances, a reasonable person would think that slight escalation of the sexual encounter was anticipated. It is not, as others have observed, normal to ask permission for each additional touch, and breast touching is the standard "second base" behavior.
Rushing straight for third would be reckless and potentially criminal.
The risk that Betty didn't want her breast touched was probably not substantial, although extant, given the description of the course of conduct, assuming Alan didn't have to convince Betty to ask him in and that he has no preexisting knowledge of Betty's being particularly prudish.
Verbal consent is a good KYA action, but it shouldn't be required. You can convey the relevant information with nonverbal cues. Someone shouldn't have to say "no" for a partner to realize that a touch is unwanted; similarly, an affirmative "yes," while flattering, is sometimes unnecessary in the presence of strong body language.
What about the parties' course of dealing? Did they ask for permission before the first kiss, the first kiss with lots of tongue, etc. or have they been proceeding on the assumption that incremental advances in initimacy are allowed until rebuffed?
To alter the hypothetical, assume that Alan touches Betty's breast a second time and she allows it -- then he touches her somewhere else "intimate" and she pushes his hand away: is it criminal for him to try again, given their personal precedent?
The woman thought I was pathetic. As I recall, she actually said, "What is wrong with you?"
Years later, in a situation involving more... significant, serious activity, a good friend of mine (female) told me that it *really* bothered her if the guy asked first (I think she actually used the word pathetic). She said that the guy should just start, and if she didn't want to proceed, she would let him know. Now, she wasn't endorsing jumping directly from gentle kissing to intercourse, but her view was nonetheless interesting because it was strongly held and strongly expressed.
Leaving the law aside, for a moment, I'd like to share my rule for such situations. The rule is that the man is always wrong. If he asks permission, he is a pathetic wimp. If he doesn't, he is guilty of sexual assault.
Oh, and dinner? If you pay, you are a sexist pig who is trying to buy your way into her pants. If you don't, you are a cheap pig.
I thought she's supposed to indicate that it means "no" at least for the rest of the day by
committing domestic assaultslapping his face. "Not yet" can be expressed by moving his hand back. (If he's a nice, respectful but shy guy, and she's not an idiot, she will move his hand forward.) "It wasn't going to be tonight, and now you've gone too far" should be indicated by a serious chill. "No" and now you've blown it for a long time has to be indicated with words.But what do I know, I have engaged in acts which if performed in California would have violated California Penal Code §262(a)(3)(A). (Or possibly §262(a)(2) -- I may not be G-d's gift to women, but I don't think §262(a)(2) applies -- she kind of grunted and went back to sleep, and we got to check one more thing off our list. It was much less memorable than "in the dunes"; we never got around to "on a plane".) On the other hand, I was very well instructed in proper seduction technique when I once started to taking a level of intimacy for granted and asked "Are we going to get laid tonight?" and was informed "Not now we're not."
#1 he is guilty as a matter of law
#2 he does not deserve criminal punishment
#3 the law clearly requires him to obtain consent before proceeding
#4 at a minimum, modification of the mens rea requirement, particularly the crime must be committed purposefully. His reaction to her request to stop ought to be an affirmative defense. The prosecution clearly needs the burden of proof to demonstrate "beyond a reasonable doubt" that the perp should have believed the conduct improper.
This would allow for prosecution of assults-by-strangers, allow for prosecution of proceeding when all other contact has been stopped, but would be difficult if the kissing resumed after the refusal.
#5 discretion
Or sexual abuse (EV did not indicate how such is defined...?).
...who wants to get into her pants for free.
A prosecutor once told me that, in her 12 years at that job, she had never once gotten a conviction when the people knew each other beforehand.
I think that convictions only happen when there is something that jurors perceive to be "wrong" with the couple - i.e. a huge age difference or if they are of different races or ethnicities.
That's completely sad, because date rape should not be legal. I don't see why jurors would not presume that a woman who puts herself through the torture of a rape trial is telling the truth. His incentive to lie is stronger than hers: he will go to jail otherwise. She has no per se incentive to lie - it is all specific to the situation. Heaven only knows why a woman who consented to sex would want revenge afterwards.....???
My girlfriend developed an abcess on one breast. It was treated, but it remained painfully sensitive to the touch for some time afterwards.
It is possible that during intercourse, I touched her breast. If I did so, it clearly would have been both against her will and for the purposes of sexual arousal and gratification. That would have been criminal, even though the entire situation was consensual, including her knowing there was a risk that I would touch her breast.
While the preliminaries may be problematic, it is my contention that the crux of these issues is in the consent and withdrawal of the consent. A serious issue in the minds of many is where a partner allows consent and something changes in the process of the act itself where the partner experiences a change of mind, e.g., as when things unexpectedly take a sudden turn to rough sex or similar conditions and consent is withdrawn, usually with a verbal command to "stop!" That point beyond which consent is withdtawn and the act continues, is colloquially known as "thrusting". What degree of rape attaches at that point and if the offending partner insists, "just a moment, I'm almost there", are they in their right mind?
"What is worse, being prosecuted but having the charges dropped and the prosecutor disbarred, or dying in a car accident?
It seems to me, that dying in a car accident is worse. Yet this occurs over 40,000 times a year in this country. The botched Duke case happened exactly once."
Uh, well the GD issue is that a car accident is what it is, a GD accident. Accidents happen.
The Duke lacrosse case was an example of an INTENTIONAL misconduct by a prosecutor. Not interviewing witnesses. Withholding exculpatory evidence. Inflaming public passion recklessly.
Apples, oranges much. Jesus Tap Dancing Christ are YOU serious?
when it doesn't-the jury may handle it with a jury pardon
or..the judge may handle it by using probation before judgment (its a misdemeanor no?)
or..an appeals court can review a sentence for "reasonableness"
thats how these things are handled in real life no?
even if the law sometimes applies to people it shouldn't (like it may in this case)....thats not always a reason to change the law.
although perhaps in this case we might try to put in more language on intent.
The recklessness requirement seems like the only realistice compromise. Eliminating the recklessness requirement makes an honest mistake a crime. Eliminating the entire statute subjects women to an attack that really is worse than a simple assault.
The key is eliminating this kind of low level sex offense from the realm of sex offenses that require reporting and registration. Unfortunately, I think that boat has sailed with the Adam Walsh act.
"Anyway, I was imprecise: you've outlined the one valid (in my mind) defense to a rape accusation. Namely, factual non-happening of the alleged act."
Ok moonbeam, say I have sex with my wife later tonight (hypothetical to follow), which is an assumption as she is also a professional and is in NYC on business today, but she is also a very normal (and attractive) woman so to further the hypothetical as I arrive back from the local drink she welcomes me naked saying "please have sex with me" and I oblige (this is a hypothetical as like most young professional couples this is not necessarily acccuate although I'd like to think we have a very healthy marriage inclusive of strong physical devotion).
Two days later she suffers a mental breakdown and accuses me of rape due to that sexual conduce which indeed occurred. No defense?!?!
You're kidding me. Are you a graduate of a law school and if so where? Are you actually licensed to practice and where? Do you indulge in sexual activity? And what basis does this belief orginate? To play fair I'll answer all but the latter:
Yes, UVA
Yes, New York, Maryland and Virginia, and to my knowledge each of said jurisdictions consider "consent" to be a defense of a rape accusation.
Yes, although not tonight (aside from my hypothetical)
Alan and Betty are on their third date. On the first two dates, they briefly kissed. On the third date, they come back to Betty's apartment, and sit for a while on the couch, consensually kissing.Alan, thinking that Betty might be interested in something more than kissing, starts caressing her breast.
She pushes his hand away.
He feels embarrassed, the mood is broken, and he leaves.so
1) NO. Nothing says this was "against the will" of the victim. Nothing says the perp did it for "specific purpose of sexual.."
2) NO.
3) N/A
4) No change required.
5) The law never deals with this hypo in practice. And even if Betty came forward with her side of the story, prosecutorial discretion would end it right there...
As for feedback : provide not only Alan's viewpoint (your account above), but also Betty's viewpoint.
As for Alan's next attempt - try sliding your hand slowly to the area you desire in a straight line, allowing her to stop you.
Elliot, you're right about the history. I don't like that you're right, but you are. I just don't know what solution there can be for the problem of "more skepticism gets directed toward rape accusations than any other crime to which consent is relevant" besides "a standard that treats the alleged victim's testimony as infallible," and I think the harm done by treating truthful claims of non-consensuality as untrue is severe enough that the possible error such a standard might occaisionally cause is an acceptable trade-off. Also, I'm unsure of what evidence could convince me that any "alleged victim" isn't telling the truth about the absence of consent. Especially, since non-consent's the default state for people. I guess hypothetically, you could prove an affirmative defense of "real consentgiven", but I don't know how you would pull off establishing that someone who says they didn't consent did, in fact, do so.
As for your questions, Nifong