Forget sex robots, virtual reality porn, and any of the other technological advances feared capable of disrupting current sexual mores. The biggest threat to sex as we know it is the coming revision of U.S. sex-crime laws. For a glimpse into this frightening future, look no further than Judith Shulevitz’s latest in The New York Times. Shulevitz chronicles how “affirmative consent” (the principle, often referred to as “yes means yes,” that the mere absence of a “no” is not sufficient permission to proceed sexually) has been quietly spreading from California universities to colleges across the country, and could soon mutate out of academia entirely.
The American Law Institute (ALI)—a respected body of professors, judges, and lawyers that draft model laws oft adopted in whole by state and federal government—has spent the past three years deliberating over sexual assault statutes (an area it hadn’t revisited since 1962). A draft of the group’s recommendations, released in May, endorsed “the position that an affirmative expression of consent, either by words or conduct, is always an appropriate prerequisite to sexual intercourse, and that the failure to obtain such consent should be punishable under” criminal law.
“The traditional premise in the law has been that individuals are presumed to be sexually available and willing to have intercourse—with anyone, at any time, at any place—in the absence of clear indications to the contrary,” states ALI. The new model “posits, to the contrary, that in the absence of affirmative indications of a person’s willingness to engage in sexual activity, such activity presumably is not desired.”
To this aim, ALI proposes establishing the new crime of sexual intercourse without consent, a misdemeanor, which takes place when a person “knowingly or recklessly has, or enables another person to have, sexual intercourse with a person who at the time of the act of sexual intercourse has not given consent to that act.” (This is, of course, absent any sort of force, coercion, or indication the victim protested/resisted, which would remain felonies.) It would also expand the definition of criminal sexual contact to include any unconsented to contact with any body part if the perpetrator intended the touch amorously or lustfully.
“To be sure, the individual’s passivity might signal willingness, but it also could signal simply a terrorized inability to react to the situation,” notes ALI in discussion of the draft (emphasis mine). This is obviously quite a departure from a standard that relies on protestation (“no means no”), either verbal or physical; there’s little ambiguity in saying “no” or “stop” or physically pulling away. The absence of such things, the drafters of the new framework admit, is full of ambiguity—hence, their desire to create a universal “presumption of unwillingness.” This, they say, will actually make things more clear, especially in cases where alcohol is involved.
The difficulty of identifying nonconsent in cases of heavy drinking flows directly from one fundamental but entirely unnecessary commitment—the law’s prevalent assumption that passive or ambiguous behavior ordinarily can be treated as consent to have sex, until an individual has taken clear steps to indicate the contrary. Because the passive behavior of a sober person traditionally has been equated with consent and because the passive behavior of an extremely intoxicated person cannot be, the [current] law imposes upon itself the nearly impossible task of determining the genuine meaning of a person’s behavior when docile or unresponsive actions occur under the influence of alcohol or drugs.
[…] Because the harm of erroneously presuming willingness in such cases vastly outweighs the harm of erroneously presuming unwillingness, the law should never treat ambiguous behavior as equivalent to consent, whether the individual in question is intoxicated or not.
The draft guidelines drew strong criticism from some members, including law professors and lecturers from the University of Pittsburgh, Duke University, Rutgers, Harvard, and Georgetown University. “If there is political consensus on anything in the United States today, it is the consensus that our government has overcriminalized and overincarcerated the American public,” they write. Yet “against this political consensus and judicial backdrop, the current ALI draft is an extreme deviation, focused on expanding criminal sanctions for sexual behavior.”
Among other new crimes the draft creates is sex “between professionals (mental health providers, lawyers, executives, etc.) and those under their supervision or in their care,” note the dissenting ALI members. In addition to creating new sex offenses, the new draft would also elevate penalties (up to life imprisonment) for all sorts of sexual conduct.
“For example, [the draft code] elevates rape to the level of first degree murder if the rape occurs in conjunction with a commercial sex act,” they note. It “elevates rape to the level of first degree murder if the rapist utilized a lookout. Many other elevations are found throughout the draft without any demonstration of need for even longer sentences in a prison system that is already over-burdened with geriatric prisoners.” Hyperbolic penalties also aid prosecutors in coercing pleas to lesser offenses.
(It’s key to remember, as Shulevitz pointed out, “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” including extreme restrictions on where they can live.)
“None of this is inadvertent or the result of loose drafting,” the lawyers and professors suggest.
To the contrary, the intentionality of the draft is fully disclosed in the announcement that its purpose is to create very expansive statutes and standards with a “default position” of overcriminalization:
[T]he appropriate default position clearly is to err in the direction of protecting individuals against unwanted sexual imposition. … Of course, a legal standard requiring the affirmative expression of consent to sex will—inevitably—entail many false negatives, in the form of findings of unwillingness when in fact passionate desire was present. But the contrary standard now prevalent in American law will—just as inevitably—entail many false positives, assumptions of willingness and subsequent sexual intrusion when such intimacy was entirely unwanted. Section 213.2(2) reflects the judgment that the harms that arise under the latter standard present far greater reason for concern.
The draft also expressly states that its intention is to equate silence with unwillingness and criminal victimization:
The argument has been made—and no doubt will be repeated—that equating silence with unwillingness … “patronizes” or “infantilizes” women, treating them as if they were incapable of expressing their own desires.
The draft defends this rule by equating it to a doctor obtaining “informed consent” before performing surgery … but it does not acknowledge any of the differences between the risks of surgery and ordinary human contact. Most importantly, the claimed analogy fails to recognize that medical informed consent is a precaution chosen by the doctor as a safeguard against possible civil damages for malpractice, not as a required behavior to avoid criminal liability.
The draft also acknowledges that it is not reflecting any existing social norm or consensus about behavior that should be deemed so extreme as to warrant criminal sanction. Instead, it clearly states that its intention is to coerce conformity to its own choice of new norms for behavior
The dissenting memo, ultimately signed by about 70 ALI members and advisers, prompted “some highly instructive hell” to break loose, writes Shulevitz in the Times.
In [the memo], 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.
Shulevitz thinks the draft code “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.” Indeed, we can see this in many areas relating to sexuality, from laws addressing “nonconsensual pornography” (aka “revenge porn“) to those criminalizing patrons of prostitution as “sex traffickers” and teens who sext each other as “child pornographers.”
Unsavory as some of this may be, police and prosecutors are supposed to keep us and our property safe, and punish those who threaten this safety; increasingly, though, we want them to institute new social-sexual norms, ones that have failed to flourish under regular conditions. It is a lot easier to simply declare things illegal than it is to shift actual behaviors and beliefs on a widespread basis. But at the end of the day, you tend to wind up with more people in jail, more lives ruined, and no less of the undesired activity (see: drugs).
We also risk diluting the perceived import or impact of an undesired act. It’s like the kid who doesn’t heed any advice against doing meth because DARE also told him that marijuana would make him a three-eyed amputee after one joint; that didn’t happen, and hence the whole oeuvre of anti-drug messages loses credibility. If we start legally defining everything from a therapist sleeping with a consenting patient to an unwanted kiss or caress as criminal sexual assault, I fear a lot less of the public will be inclined to take any rape claims seriously. And why should they? People feel tricked when they encounter media, movies, and reports on rape that only casually and belatedly reveal their sexual assault definitions include all “nonconsensual touching” and sex while intoxicated. It’s not that this activity is necessarily to be encouraged, just that it’s seen by most as qualitatively different than how they are viewing rape.
And police seem unlikely to just seamlessly adopt new standards. It wasn’t too long ago that neither cops nor anyone else took rape seriously unless it involved a sort of perfect victim and violent force. Things may have gotten better, but we’re still not exactly winning on getting police to process rape kits, investigate rape allegations, or refrain from raping people themselves. What makes people think that widening the scope of things they have to investigate as sex crimes will increase cops’ aptitude to take rape investigations seriously and treat rape victims with seriousness and respect?
Shulevitz writes that thus far, “no one seems sure how affirmative consent will play out in the courts. One Harvard law professor told her that it’s a workable standard only “if we assume it’s not going to be enforced, by and large.” Of course, “selectively enforced laws have a nasty history of being used to harass people deemed to be undesirable, because of their politics, race or other reasons,” Shulevitz notes.
“As with other areas of criminal law,” caution the dissenting ALI members, “expanding the statutes in the ways set forth in the draft would fall particularly hard on individuals of color who are represented disproportionately at each stage of the criminal justice system.” American law enforcement “has an unfortunate history of excessive punishment in the name of protecting women especially when issues of race are present.”
People who want to solve social problems by reflexively invoking the power of state justice often overlook exactly whom and what systems will be enacting this justice, and how they’ve historically operated. It’s not going to be pretty, or just, to turn virtually everyone into potentially prosecutable sex criminals.