Sexual consent laws on college campuses are already reaching absurd levels, but if the American Law Institute has its way and loosens the concepts of consent, it will easier to accuse participants of crimes.
Stuart Taylor Jr. writes at Real Clear Politics:
Legal Group Weighs Radical Expansion of Sex Crimes
Imagine the following case: Two recent college grads meet in a bar, talk, begin kissing, and go to her apartment. After a little more talking, they resume kissing there. He undresses her and initiates sexual intercourse. She neither objects nor resists. He leaves, and they have no further contact. A month later, she files a criminal complaint with police, complaining that this was rape because she never expressed verbal consent and was physically passive.
Under the law as it has been from time immemorial, the woman’s complaint would be rejected because her failure to say no or resist would be considered consent.
But under proposals that will be put to a vote on May 17 at the annual meeting of the American Law Institute, the nation’s most prestigious drafter of model laws, the man could be charged with of a felony punishable by up to five years in prison. Under the letter of the proposed new law, his defense — “she never said no, or stop, or I don’t want this, and she never tried to push me away” — would not save him from being convicted and imprisoned even if the jury and judge believed him.
These proposals, by a powerful faction of the American Law Institute, are deeply offensive to prominent civil libertarians, feminists, scholars and practicing lawyers, and have provoked a controversy that has deeply divided the ALI.
Taylor names names at the link. No surprise, the most aggressive proponents of the change in the consent standard are radical leftist law professors:
More than 100 ALI members have mobilized to oppose the proposals of the radical faction’s leader, Professor Stephen Schulhofer of NYU Law School, the sex-crime project’s powerful chief “reporter.” The genteel but fierce debate has raged since 2013.
Schulhofer and “associate reporter” Erin Murphy explained in an “introductory note” to an earlier draft that they wanted to criminalize “commonplace or seemingly innocuous” behavior in order to change “existing social expectations” and reshape social norms.
This reflects their view that many millions of women are routinely pressured to have sex in ways that are not now—but in their view should be—illegal. The current Schulhofer draft would also impose unprecedented limits on defendants’ ability to introduce evidence suggesting innocence.
Professor Jacobson has featured the video below in prior posts on this subject but it’s worth re-posting here. Witness the new Orwellian version of intimacy:
Here’s more from the article linked above:
The proposed definition of “consent” specifies that “[n]either verbal nor physical resistance is required to establish the absence of consent.” It also implies that passivity does not show consent, and it is dangerously unclear as to when silent, mutual foreplay does and does not “communicate willingness.” Another section 213.0(d) adds that “[c]onsent may be revoked at any time…by behavior communicating that the person is no longer willing.”
These and other proposals advanced by Schulhofer and his allies would give prosecutors who cannot prove that an actual assault took place an easy way to coerce guilty pleas. The many other proposed expansions of sex crime liability that are to be voted on at a future meeting or meetings include a proposal to make it a 10-year felony to have sex with a partner who is “in a state of mental torpor as a result of intoxication.”
Also, if you think this applies only to college students, guess again:
Other provisions of the ALI’s March 2016 preliminary draft, to be voted on at future meetings, would:
–Make it a crime even for a spouse or “intimate partner” to initiate sex unless he could prove that he “reasonably believed that the complainant would welcome the act.” This standard could, critics say, invite further proliferation of the strategic accusations of sexual and child abuse that already plague divorce and child custody matters.
–Make a felon of anyone providing professional treatment for any mental or emotional health problem, no matter how slight, to a mature adult if the two develop a mutual romantic attachment that leads to sexual penetration.
Hat tip to KC Johnson:
— KC Johnson (@kcjohnson9) May 14, 2016
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