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.