, NY Times - Though most people think of “yes means yes” as strictly for college students, it is actually poised to become the law of the land.
About a quarter of all states, and the District of Columbia, now say sex isn’t legal without positive agreement, although some states undercut that standard by requiring proof of force or resistance as well.
Codes and laws calling for affirmative consent proceed from admirable impulses. (The phrase “yes means yes,” by the way, represents a ratcheting-up of “no means no,” the previous slogan of the anti-rape movement.) People should have as much right to control their sexuality as they do their body or possessions; just as you wouldn’t take a precious object from someone’s home without her permission, you shouldn’t have sex with someone if he hasn’t explicitly said he wants to.
And if one person can think he’s hooking up while the other feels she’s being raped, it makes sense to have a law that eliminates the possibility of misunderstanding. “You shouldn’t be allowed to make the assumption that if you find someone lying on a bed, they’re free for sexual pleasure,” says Lynn Hecht Schafran, director of a judicial education program at Legal Momentum, a women’s legal defense organization.
But criminal law is a very powerful instrument for reshaping sexual mores. Should we really put people in jail for not doing what most people aren’t doing? (Or at least, not yet?) It’s one thing to teach college students to talk frankly about sex and not to have it without demonstrable pre-coital assent. Colleges are entitled to uphold their own standards of comportment, even if enforcement of that behavior is spotty or indifferent to the rights of the accused. It’s another thing to make sex a crime under conditions of poor communication.
Most people just aren’t very talkative during the delicate tango that precedes sex, and the re-education required to make them more forthcoming would be a very big project. Nor are people unerringly good at decoding sexual signals. If they were, we wouldn’t have romantic comedies. “If there’s no social consensus about what the lines are,” says Nancy Gertner, a senior lecturer at Harvard Law School and a retired judge, then affirmative consent “has no business being in the criminal law.”
Perhaps the most consequential deliberations about affirmative consent are going on right now at the American Law Institute. The more than 4,000 law professors, judges and lawyers who belong to this prestigious legal association — membership is by invitation only — try to untangle the legal knots of our time. They do this in part by drafting and discussing model statutes. Once the group approves these exercises, they hold so much sway that Congress and states sometimes vote them into law, in whole or in part. For the past three years, the law institute has been thinking about how to update the penal code for sexual assault, which was last revised in 1962. When its suggestions circulated in the weeks before the institute’s annual meeting in May, some highly instructive hell broke loose.
In a memo that has now been signed by about 70 institute members and advisers, including Judge Gertner, readers have been asked to consider the following scenario: “Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).”
Far-fetched? Not as the draft is written. The hypothetical crime cobbles together two of the draft’s key concepts. The first is affirmative consent. The second is an enlarged definition of criminal sexual contact that would include the touching of any body part, clothed or unclothed, with sexual gratification in mind. As the authors of the model law explain: “Any kind of contact may qualify. There are no limits on either the body part touched or the manner in which it is touched.” So if Person B neither invites nor rebukes a sexual advance, then anything that happens afterward is illegal. “With passivity expressly disallowed as consent,” the memo says, “the initiator quickly runs up a string of offenses with increasingly more severe penalties to be listed touch by touch and kiss by kiss in the criminal complaint.”
The obvious comeback to this is that no prosecutor would waste her time on such a frivolous case. But that doesn’t comfort signatories of the memo, several of whom have pointed out to me that once a law is passed, you can’t control how it will be used. For instance, prosecutors often add minor charges to major ones (such as, say, forcible rape) when there isn’t enough evidence to convict on the more serious charge. They then put pressure on the accused to plead guilty to the less egregious crime.
The example points to a trend evident both on campuses and in courts: the criminalization of what we think of as ordinary sex and of sex previously considered unsavory but not illegal. Some new crimes outlined in the proposed code, for example, assume consent to be meaningless under conditions of unequal power. Consensual sex between professionals (therapists, lawyers and the like) and their patients and clients, for instance, would be a fourth-degree felony, punishable by significant time in prison....
It’s important to remember that people convicted of sex crimes may not only go to jail, they can wind up on a sex-offender registry, with dire and lasting consequences. Depending on the state, these can include notifying the community when an offender moves into the neighborhood; restrictions against living within 2,000 feet of a school, park, playground or school bus stop; being required to wear GPS monitoring devices; and even a prohibition against using the Internet for social networking.
... Affirmative-consent advocates say that rape prosecutions don’t produce very many prisoners. They cite studies estimating that fewer than one-fifth of even violent rapes are reported; 1 to 5 percent are prosecuted and less than 3 percent end in jail time. Moreover, Stephen J. Schulhofer, the law professor who co-wrote the model penal code, told me that he and his co-author have already recommended that the law do away with the more onerous restrictions that follow from being registered as a sex offender.
Affirmative sexual consent is hardly a radical concept. It's been the law in Canada since 1994. I think it's a good standard. If you have... lulu 15 minutes ago
Looks like rape culture is alive and well reading these comments. So many seize on holding hands as a possible illegal move. Don't you... jeoffrey 15 minutes ago
I guess I'm worried about the ambiguity of the slogan. A lot of people who would sign on to "Yes means yes" (who could object?) wouldn't...
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I visited Mr. Schulhofer in his office at New York University Law School to hear what else he had to say. A soft-spoken, thoughtful scholar and the author of one of the most important books on rape law published in the past 20 years, “Unwanted Sex: The Culture of Intimidation and the Failure of Law,” he stresses that the draft should be seen as just that — notes from a conversation in progress, not a finished document.
But the case for affirmative consent is “compelling,” he says. Mr. Schulhofer has argued that being raped is much worse than having to endure that awkward moment when one stops to confirm that one’s partner is happy to continue. Silence or inertia, often interpreted as agreement, may actually reflect confusion, drunkenness or “frozen fright,” a documented physiological response in which a person under sexual threat is paralyzed by terror. To critics who object that millions of people are having sex without getting unqualified assent and aren’t likely to change their ways, he’d reply that millions of people drive 65 miles per hour despite a 55-mile-per-hour speed limit, but the law still saves lives. As long as “people know what the rules of the road are,” he says, “the overwhelming majority will comply with them.”
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He understands that the law will have to bring a light touch to the refashioning of sexual norms, which is why the current draft of the model code suggests classifying penetration without consent as a misdemeanor, a much lesser crime than a felony.
This may all sound reasonable, but even a misdemeanor conviction goes on the record as a sexual offense and can lead to registration. An affirmative consent standard also shifts the burden of proof from the accuser to the accused, which represents a real departure from the traditions of criminal law in the United States. Affirmative consent effectively means that the accused has to show that he got the go-ahead, even if, technically, it’s still up to the prosecutor to prove beyond a reasonable doubt that he didn’t, or that he made a unreasonable mistake about what his partner was telling him. As Judge Gertner pointed out to me, if the law requires a “no,” then the jury will likely perceive any uncertainty about that “no” as a weakness in the prosecution’s case and not convict. But if the law requires a “yes,” then ambiguity will bolster the prosecutor’s argument: The guy didn’t get unequivocal consent, therefore he must be guilty of rape..
It's probably just a matter of time before “yes means yes” becomes the law in most states. Ms. Suk told me that she and her colleagues have noticed a generational divide between them and their students. As undergraduates, they’re learning affirmative consent in their mandatory sexual-respect training sessions, and they come to “believe that this really is the best way to define consent, as positive agreement,” she says. When they graduate and enter the legal profession, they’ll probably reshape the law to reflect that belief.
Sex may become safer for some, but it will be a whole lot more anxiety-producing for others.
3 comments:
IMO it would be best to make law about the consentor's capacity to make decisions based on alcohol/drug consumption and other such factors before chopping logic about what constitutes consent. Obviously a woman who can't walk can't give consent.
A victim is not responsible for her rape but she is responsible for what she does after. It is reprehensible that she should be able to make headway in a prosecution if she has wilfully destroyed all the evidence.
The law is destroying culture and will ruin our sexuality if this continues.
"To critics who object that millions of people are having sex without getting unqualified assent and aren’t likely to change their ways, he’d reply that millions of people drive 65 miles per hour despite a 55-mile-per-hour speed limit, but the law still saves lives."
But people don't face jail time and life-long scarlet letters as "sex offenders" for driving at 65 mph. The analogy is absurd and it is worrisome that the man who formulated it seems to be driving these new policies.
"Mr. Schulhofer has argued that being raped is much worse than having to endure that awkward moment when one stops to confirm that one’s partner is happy to continue."
Again an absurd analogy because the vast majority of sexual experiences are not "rapes" Why should people have to endure "awkward moments"? Laws like this assume that any physical interaction between humans is inherently coercive. Human sexuality and passion are complicated and to propose a social engineering project of this scale backed with serious legal liability is an affront to our human rights.
Another point of contact of police with the public as an arrest and detain bubble, with Kafkaesque lifetime registration. Violation of harassmment orders can fill a jail just from overuse of the smart phone. The cultural dissonance of underage girlfriends also gets customers for prisons under statutory rape. The criminalization of men borrows from the supralegal tradition of lynching. A special sex court diversion for treatment and social work support might soften the harsh outcomes.
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