I don't think he has committed a crime because I don't think he was reckless -- it's unclear if ex ante the risk that Betty doesn't want the touching is substantial but there certainly is no evidence that he thought there was such a risk and then consciously disregarded it. Regardless it's probably a justifiable risk.

As long as the reckless requirement is interpreted relatively liberally, I don't think there's a problem with the law.

I applaud your efforts to get more female commenters, but as a torts prof., I want to give my 2 cents.

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.

Well, as long as the risk isn't "unjustifiable", then he's not reckless.

(1) No. Alan clearly did not have intent to engage in unwilling touch. Whether he was reckless is a closer case by the definitions given, but res ipsa loquitur: He stopped. Interpreting his advance as reckless would be perverse, so it's not.

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.

EV:

Good point (one which I think answers AC's point). Just shows how pig-ignorant I am of criminal law rules.

OK, this might be another example of me not understanding how "reckless" is used in criminal law, but. . .

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 have a two word answer to your question:
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.

In my comments above, I ignored the whole issue of recklessness, because I read the post very quickly. I assumed that anything that was unwanted where explicit consent was not given would run afoul of the law. With a recklessness requirement, the law becomes immune from serious criticism. But I think the law is fine as is, even if recklessness is not required. There is nothing wrong with requiring verbal consent in order to eliminate all risk.

female law student,

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.

female law student: I agree. I'd particularly note that the risk of harm from one instance of unwanted breast-touching, without more, in an already-sexual situation on a date seems quite low, which makes the risk more justifiable. It's easy to imagine situations where unwanted breast-touching could easily come across as actively threatening, hence greater risk of emotional harm, but this is not one of them.

Complicating matters further, although not presented in the facts here - if I remember correctly my Crim Law casebook cited statistics showing many (majority of?) women actually do say "no" when they mean "yes". I think the main theory is that women are afraid of being perceived of as too easy. I’m sure there are other factors involved, but in any event, what result if Alan proceeds to try his luck again? The case for his having been reckless must be as good as or greater than in the initial attempt. Nevertheless, convicting Alan or other men in like cases would theoretically miss the mark.

I'd like to second Mr. Impressive's post. I think the charging decision settles many of the questions for us. Yes Alan has committed a crime, yes he risks criminal punishment, yes he acted reasonably, and no the law does not need to change. Betty won't tell on him, and no prosecutor would do anything if she did.

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.

Would he be in trouble if he tried again on the 4'th or 5'th date?

Betty won't tell on him, and no prosecutor would do anything if she did.

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.

Don't put such faith in the charging decision. Just a month or two ago, a bunch of 8th grade boys were ARRESTED, and spent several days in juvenile detention, for participating in an informal "slap butt day," in which boys and girls alike ran through the hallways slapping each other on the butts.

We shouldn't have been that willing to much so much discretion in the hands of prosecutors even in the days before Nifong.

Gee-- first thing I learned in Crim. Law was that everything is a crime.

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...

intent = consent

I think one would have to interpret "substantial risk" in light of general social custom. I think it is fair to say that it is a general social custom that, when a couple is engaged in serious kissing, the man is expected to take the lead in progressing to more intimate activity, more often than not. As other commenters have noted, it is decidedly NOT the social custom to formally ask permission, verbally, before proceeding to each next step. Thus, a hand caress to the breast in such a circumstance is most reasonably expected to be understood as a request for permission to proceed further.

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.

EV, as to your three hypotheticals above (Alan (1) believes any woman would want him, (2) believes she has given him nonverbal encouragement, or (3) decides to try it and see) I would say that in all three cases he is _not_ reckless because he thought through his action and the possible consequences.

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)

Mr. Impressive wrote:

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.

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.

"for the specific purpose of sexual arousal, sexual gratification, or sexual abuse"

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.

What about asking your students -- How would your answer change if Betty had started caressing Alan in an intimate place and he said no?

I can only thank the mother goddess that this was not an issue when I was parking with my dates overlooking biscayne bay. I would still be in jail.

Stacy: Oddly enough, under the MPC Alan's having "thought through his action and the possible consequences" will increase the likelihood that he'll be found reckless, at least unless the result of his thought is "I'm 100% sure she wants me." If he hadn't thought through it, and just blithely gone on with the act, then it's possible that he wasn't consciously aware of a substantial and unjustifiable risk that she didn't want to be touched on the breast. But if he did through the action and the possible consequences, then I suspect he must have realized that one possible outcome is that it turns out that Betty didn't want her breast touched.

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).

It's interesting how many commentors have recollections concerning the memorable discussions that arise from discussing of rape issues in Criminal Law. My Crim professor, awkwardly enough, wrote an article about our class. James J. Tomkovicz, On Teaching Rape: Reasons, Risks, and Rewards, 102 YALE L.J. 481 (1992).

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.

I remember numerous occurrences in my high school and college days (well maybe not numerous, but more than once) that went something like this: I touch her breast, she pushes my hand away, I touch her breast a second time a few minutes later, she pushes my hand away, I touch her breast a third time a few minutes later, she lets me leave it there.

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"?

Should the law be changed? No. It should be expunged from the books. It is either assault or it isn't. If they're kissing and he's breathing hard she knows where he's coming from. If she is also breathing hard then he has a pretty good idea of where he can go next. All this law does is open doors for people who are ticked off at their date to "get even". It is a really really stupid law. Assault laws should more than take care of the problem. Get rid of the PC and get a life.

Yes, I know it is titled, at least in EV's post, as a sexual assault problem. But the act described is not sexual assault as any rational person would define it. It may be unwanted touching, but that is not assault except in the mind of a lawyer. As I say, "expunge".

(1) Has Alan commited [sic] a crime?

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.

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?

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).

This type of sentiment is the basis of my moniker. Are you even remotely serious?

Yes. Why wouldn't I be?

I was thinking on this matter on my blog last month. The general consensus of the women was "if I'm kissing someone, I generally will go a little further."

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).

"Yes. Why wouldn't I be?"

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.

No crime, because no substantial and unjustifiable risk. But it brings to mind two points:

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.

Amber T.: Very interesting points, thanks -- but is your claim that the risk is not substantial, not unjustifiable, or neither substantial nor unjustifiable? And why?

(1) Has Alan commited a crime?

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.

Steve2,
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?

EV writes:

Oddly enough, under the MPC Alan's having "thought through his action and the possible consequences" will increase the likelihood that he'll be found reckless, at least unless the result of his thought is "I'm 100% sure she wants me."

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.

Nifonged,

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.

"Yes. Why wouldn't I be?"

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.

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 realize that this is a legal hypothetical that is intended to spur the discussion of how the law and reality intersect. But I despair to see such things falling into the realm of criminal law. If normal behavior can be a crime depending only on very subjective feelings and perceptions, then everyone is a potential criminal and anyone could be arrested for just about anything.

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

The guy violated the law, but the law is an ass. How the poice and prosecution would handle a complaint varies from district to district, depending on the policy of the particular area. Some areas go bonkers on alleged sexual crimes. I'd never look twice at a woman in Torrance, California; they might try to lock me up for life if she took offense.

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.

EI,

With due respect, I think you should calm down. Your claims do not really hold water, and in my view are excessively emotional.

If normal behavior can be a crime depending only on very subjective feelings and perceptions, then everyone is a potential criminal and anyone could be arrested for just about anything.

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.

But I despair to see such things falling into the realm of criminal law. If normal behavior can be a crime depending only on very subjective feelings and perceptions, then everyone is a potential criminal and anyone could be arrested for just about anything.

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.)

Alan has not committed a crime because the risk that his touching was against Betty's will was neither substantial nor unjustifiable. Since the standard is framed as an "and," not an "or," only one element must be missing to excuse him.

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.

I don't see any 8 page answers to this question so all the above answers can only get a C at best.

Has anyone reading this ever asked before they groped?

Yes, when I was young, naive, and extremely well-intentioned. :) (I don't want to reveal at what age. :)

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.

Given your emphasis on "recklessness", I must say:

#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

Here's a real situation that could qualify as criminal under a strict reading:

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.

My God I go out for a few beer after work and come back to this junk:

"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?

I don't see an alternative to a statute like this. It should be illegal to walk down the street and intentionally grab a random woman's breast. But honest miscommunication between two people on a date should not lead to a sex crime conviction.

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.

My God it actually got worse:

"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)

Steve2 - while I'd at least be willing to consider a strict liability standard for rape, I don't think a standard that treats the alleged victim's testimony as infallible is acceptable. While I agree that people should generally be wiling to believe women who say they've been raped (more skeptisicm gets directed toward rape accusations than at any other crime to which consent is relevant), but bogus accusations of rape, especially by black men, have a well-established and ugly history.

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, Nifonged? No, no, not as much as I want to, and I think I've answered above.

scratch part of that comment aboved-therd be no jury in this case since the max is 6 months

That may change with the increasingly onerous sex registration requirements. My colleagues and I have had a number of judges tell us informally that they think sex registration laws have become criminal, and two of the judges who have told me that are conservatives (one really, really conservative).

Most offenders would rather do a year in prison than 10 or 20 years on the sex offender registry. The added registration punishment gives criminal defense lawyers an argument that even misdemeanor sex charges should bring felony protections.

This will be an interesting area of the law over the next couple of years.

Isn't it disregarding the risk, not the risk itself, that's unjustifiable? Shouldn't the clause read as follows?

(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 and without justification disregards a substantial and unjustifiable risk that the material element [the act's being against the will of the person touched] exists.")

Otherwise, as originally drafted, aren't substantial and unjustifiable modifying different meanings of risk?

Clearly we need something like the Miranda warning for people in this situation:

"You have the right to remain silent (but I prefer you don't), anything you say I can touch, can and will be held against me."

Other reasons: to deny infidelity, for financial gain (civil damages)

CYA- get a signed (and witnessed) MOU first.

Who said romance is dead?

I wonder how many of those who find no recklessness would change their opinion if Alan had made a more forceful move toward Betty's genital area before being rebuffed. From the statute, there shouldn't be any difference (both are protected body areas under the statute). However, I'm betting that if Alan tried to make his move right to the genitals, that fact would alter many people's perspective on his intent. But why?

Intent, particularly in the area of sex crimes, can be as much about perceived norms and how intimate relationships form. The norm for many in America (and many in this comment thread) is that kiss -> breast -> x -> y -> z. All of that occurs nonverbally, but either party can stop along the way. It doesn't have to be so. The norm could have developed such that verbal communication was required at each stage or that kiss -> z -> y -> x -> breast. Statutes do a very poor job of integrating norms in areas where the norms themselves are in dispute between the victim and the defendant.

And since I'm a total realist about questions like "was a crime committed" when it comes to sexual violence, my answer is only "what did the twelve jurors say?" Of course, I'd never let my own students answer that way. ;)

To perhaps clarify, the act itself is not usually criminal, so it would be silly to automatically assume that one story is credible while the other is not. And the Duke situation may be rare, but that does not mean that false accusations are as rare. There still may be social pressures to protect ones honor to hide a mistake, or reasonable misunderstandings. Maybe not in Steve's world, but coquettish behavior is part of human sexuality. Some people wouldn't have it any other way and others suffer.

Nifonged,

As an aside, I think you would better represent UVa if you started to act a little more professional. So far, you have said that the views of others are "junk." You have also referred to those you disagree with as "nutcase" and "moonbeam." Do you really believe this is persuasive rhetoric? Do you really believe name calling improves the quality of the conversation?

It seems to me that your name calling is a result of you being excessively emotional and irrational. As such, from a rhetorical perspective, I think it weakens your arguments, not those with whom you disagree.

Hmmm,

Actually, if you read the comments more carefully, I do not think you will find a consensus on this.

That there is no consensus is exactly why I think we should define what is acceptable and not acceptable more clearly.

Nifonged,

Well, you called my post "junk" yet that is apparently because you did not understand it.

This is a good demonstration of one of the problems with this sort of rhetoric. Insults become a substitute for careful evaluation of the position.

Maybe, if it seems to you as though someone is doing something silly like comparing apples and oranges, you should put on your thinking cap to determine whether this initial perception is correct rather than reaching for insults. A little more careful thinking on your part should have made it clear that decisions to build roads and decisions to include prosecutorial discretion can in fact be sensibly compared on the macro level of systems design rather than the micro level where your criticism of comparing apples and oranges seems sensible. Also, your obsession with the micro seems to be an indication that you are not seeing the bigger picture, but are instead emotionally and irrationally attached to particulars.

The UVa grads that I know are outstanding individuals. You don't represent. At least not as you have expressed yourself with crude insults as a substitute for intelligent thought here.

Spider,

I share your lament about rhetorical bullying in the blogosphere. On this site I happily find such incivility to be much the exception to the rule.

"Calling the point of view of someone else junk does not make your own point of view more persuasive. Further, it is impolite. Please grow up. "

Well, he DID admit that he had a "few beer" before he posted, so we can cut him some slack.

And we'll assume he's drunk on all his posts. They make much more sense that way.

"And we'll assume he's drunk on all his posts. They make much more sense that way."

Yeah defending due process is always a drunken endeavor. At least I don't have a moniker referring myself as "impressive" when its not apt.

Its my "crude" point of view that nobody could possibly think that a woman could unquestionably consent to sex, then later claim that it wasn't consensual and from a strict liability perspect automatically be believed and the accused would summarily prosecuted and convicted. Ergo, anybody that would espouse such sentiment was simply throwing out arguments just to stir the pot, rather than being a true believer....i.e. a troll. That's a much better label than someone who truly believes that sentiment. Because:

"Nifonged, if you want to persuade him ever-so-slightly otherwise, calling him "junk" and a "nutcase" will not do."

That's the point, nothing will do. Anybody ^$%#&ing dumb enough to TRULY have the point of view that a woman could unquestionably consent to sex, then later claim that it wasn't consensual and from a strict liability perspective automatically be believed and the accused would summarily be prosecuted and convicted isn't going to change their mind. There is no argument that will persuade someone from that belief.

At to less than Impressive, you're arguing against your mirror. I have yet to make any comment as to how prosecutorial discretion even enters into the picture. A "micro" review of my posts would indicate that I initially responded to an outlandish claim from Steve2 that rape should be legally considered rape when a woman said it was. Said claim is no less outlandish now than it was then. I honestly don't know what you're blathering about. Are you defending Steve2's or targeting a strawman?

At any rate:

"First of all, what is "normal behavior."

My wife and I are pretty damn normal. Under the statute both of us are criminals.

I'm amazed that some people are so willing to take the position that the verdict delivered in To Kill a Mockingbird was just and proper.

(Another Male non-lawyer's perspective)

(1) Has Alan commited a crime?

Most likely not. In such situations, non-verbal communications perceived (which can be later described) help indicate whether such advances are unwelcome and "against the will" of the lady. My experience is that if she's sitting in your lap grinding her crotch against your belt buckle, she's generally not going to object (and if she's trying to pull off your pants, she'd better not object.) If she's been conspicuously rubbing her hands on his chest, I'd feel an Equity defense ought have basis. When working from less obvious signals, a more gradual approach (eg, moving from rubbing her back, to holding her waist, to progressively move the hand up the front) allows for one to non-verbally signal the intent and still preclude crossing to "too intimate". However, if he just up and grabs hold, yeah, it might constitute a crime.

I think a distinction should be made between mistaking Betty's state of mind (which can only be definitively known by the Ultimate Judge of the Ultimate Court), versus failure to make reasonable effort at determining Betty's state of mind.

However, I'd also consider Alan's evident yet thus far unnoted lack of apology at accidentally offending the lady to be admissible evidence as to his state of mind, that he did not concern himself with whether or not the contact was against Betty's will, rather than his merely being mistaken in judgment.

(2) Do you think he deserves criminal punishment?

Presuming some subtlety to Alan's approach and some expressed contrition afterwards, or alternatively non-verbal signals from Betty particularly prone to misinterpretation or equitable expression of her interest, no. I'd think that a hard slap from Betty across his cheek at the time would be more appropriate.

(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?

As I've said, I'd consider a more subtle approach than just going "HONK!" (another non-random example — but I didn't do it!) to be the best way of stopping short of offense. (Of course, I've gotten complaints from ladies for being too subtle — some fellows need to be hit with a brick to get a clue; I generally require a big brick.) Rather than the law outright requiring such an approach, I'd consider it more appropriate for the law to consider such "abuse" statutory defense for any instantaneous response from the lady that does not kill nor maim (EG: break his arm, knee his groin, et cetera) as merely conveying such lack of consent for his future reference.

(4) Do you think the law needs to be changed, and, if so, how?

I'd suggest changing "if the touching is against the will of the person touched" "without reasonable grounds for belief that the touching is according to the will of the person touched"... but I'd be interested in hearing from an expert in sex assault counseling on what the consequence of such change would be.

(5) How does the law in practice deal with this situation?

No idea, although the suggestion of prosecutorial discretion seems likely. More common than legal action by the lady is either immediate physical force, or gossip afterwards regarding his ineptness to preclude his future opportunities. (I've heard remarks from girls that they won't risk providing a known octopus any opening on a date without intent to go as far as "touching" can be taken; ladies present may dispute this.) However, in parallel, last I heard Virginia had a law saying sexual contact on a person under the influence was date rape. This leads to the interesting possibility of a couple hooking up at a drunken college party, and both filing rape charges afterwards. This IMNSHO is dumb, especially if both of them willfully ingested the intoxicants (as opposed to a spiked drink). In practice, of course, the guy is prosecuted and the girl gets off....

Bellatrix79 If statute means the touchee, no violation because sleeping woman cannot be aroused so the man cannot so intend.

Arousal while asleep is possible for both males and females; while "wet dreams" are more obvious afterwards for guys, girls get them too. I've also been acquainted with both who got off on the idea of being "molested" by an attractive MOTAS in their sleep, and many view such arousal as the most enjoyable means of transitioning from sleep to wakefulness.

Nifonged [T]o my knowledge each of said jurisdictions consider "consent" to be a defense of a rape accusation.

...presupposing sound mind for consent to be granted. As I noted above and the last I heard, Virginia law didn't allow for someone to give consent while drunk.

Out of curiosity, does anyone know how much a person has to drink in order to forget whether he or she had sex under the influence? I've been very drunk in my time, and I've even had sex drunk, but I've never been so drunk that I couldn't remember whether or not I've had sex.

And, if a man is that drunk, what are the odds he'd actually be able to do it?

Yeah, I know it's off topic, but the examples from the college town kind of threw me.

abb3w is detailed and correct from what I recall from my days working in the center for alcohol studies (not an undergrad seminatr as you might imagine)

but

Regular *heavy* drinkers can have their own unique reactions, including Delirum Tremens. Such people can lose periods of time when they are moving around and quite lively. They can also go on the wagon and fall down in convulsions years later from GABA-based convulsions. Someone who spends a long time re-arranging their brain chemistry will eventually be successful at doing so.

And that's what's so wrong with this and similar legislation. It so often assumes that their is a clarity and purpose to life and its actions that is often missing. No harm no foul needs to be the rule, and folks need to be encouraged to get over obsessing on every wrong. As has been observed on the UI thread, criminalizing mis-reading intent and asking for clarification is bad policy.