Regulating Sex - The New York Times - 0 views
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THIS is a strange moment for sex in America. We’ve detached it from pregnancy, matrimony and, in some circles, romance. At least, we no longer assume that intercourse signals the start of a relationship.
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But the more casual sex becomes, the more we demand that our institutions and government police the line between what’s consensual and what isn’t. And we wonder how to define rape. Is it a violent assault or a violation of personal autonomy? Is a person guilty of sexual misconduct if he fails to get a clear “yes” through every step of seduction and consummation?
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According to the doctrine of affirmative consent — the “yes means yes” rule — the answer is, well, yes, he is.
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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,”
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About a quarter of all states, and the District of Columbia, now say sex isn’t legal without positive agreement,
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And though most people think of “yes means yes” as strictly for college students, it is actually poised to become the law of the land.
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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.
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Should we really put people in jail for not doing what most people aren’t doing? (Or at least, not yet?)
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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.
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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.
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“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.”
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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.
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most of these occupations already have codes of professional conduct, and victims also have recourse in the civil courts. Miscreants, she says, “should be drummed out of the profession or sued for malpractice.”
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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.
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We shouldn’t forget the harm done to American communities by the national passion for incarceration, either. In a letter to the American Law Institute, Ms. Smith listed several disturbing statistics: roughly one person in 100 behind bars, one in 31 under correctional supervision
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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
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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.
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This may all sound reasonable, but even a misdemeanor conviction goes on the record as a sexual offense and can lead to registration
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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
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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.
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“It’s an unworkable standard,” says the Harvard law professor Jeannie C. Suk. “It’s only workable if we assume it’s not going to be enforced, by and large.” But that’s worrisome too. 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.
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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.