The act of sex is not illegal. But if two members of the American Law Institute have their way, it will be — unless you follow their rules.Think this could never happen? Think again.
Law professors Stephen J. Schulhofer and Erin Murphy are trying to update the criminal code when it comes to sex offenses, believing current definitions of rape and sexual assault are antiquated. The focus of their draft is on what constitutes consent. It adopts the "yes means yes," or "affirmative consent" model that was passed in California last year.
The California law applies only to college campuses, however. Schulhofer and Murphy aim to take that definition of consent — which says that before every escalation of a sexual encounter, clear and convincing consent must be given — to the state or federal level. No one actually has sex this way, requesting permission and having it granted perhaps a dozen times in a single encounter.
But the theory that millions of Americans are having sex wrongly has gained currency among campus activists. This new attempt to alter the American Law Institute's Model Penal Code, a highly influential document that has been adopted in whole or in part by many states' legislatures, is part of a push to bring authoritarianism into the bedroom.
Schulhofer and Murphy do not intend to make sexual intercourse impossible to construe as an innocent act. But this would be the consequence of their draft. Any act of sex in which permission is not repeatedly requested and granted would put at least one of the parties, usually men, in legal jeopardy. Absent the repeated "May I…?" and affirmative responses, any woman could later have her partner locked up over unexpressed mental reservations. Men could make the same accusations.
No one who opposes this legal change argues that consent is unnecessary. But the "yes means yes" standard is so stringent that it would criminalize millions of Americans overnight unless no one reports them.
The American Law Institute was founded in 1923 "to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work," according to its charter. It is a consequential organization. The Institute's Model Penal Code of 1962 was adopted almost entirely in New Jersey, New York and Oregon, with nearly two-thirds of the states using at least some portion of it.The reality of their proposal is right out of Oceania.
So, Schulhofer and Murphy want to change an important document.
The two presented their first draft of a new model penal code for sexual offenses to the Institute's 2014 annual meeting. Members discussed the draft vigorously. Because the discussion ran out of time, the draft was referred back to Schulhofer and Murphy for reworking.
They presented a reworked draft at ALI's 2015 annual meeting in Washington, D.C. It was dated April 28, just three weeks before the meeting on May 19. Schulhofer and Murphy were criticized for providing the draft so close to the meeting, giving lawyers limited time to read and analyze its 250 pages. But the "reworked" draft is actually just a reorganized version of the 2014 draft, with hardly any changes.
This made it easy for opponents to produce an opposition letter with 22 co-signers to pick the document apart. It also showed that Schulhofer and Murphy did not allow the feedback received in 2014 to affect their views.
Opponents say the draft would further burden an already over-criminalized and over-incarcerated American public.This idea is by itself horrifying. That it has come to so many college campuses -- including Ohio State, thanks to Michael Drake -- is an affront to any reasonable notion of human nature, justice and fair play.
The opponents' letter provides this common and hypothetical encounter: "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."
Under Schulhofer and Murphy's new rules, according to the opposition letter, Person A is guilty of "criminal sexual contact." That's because Section 213.0(5) of the draft "defines 'sexual contact' expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched."
Person A would be guilty of the act only if Person B filed a complaint, but therein lies a profound problem with Schulhofer and Murphy's draft. Everything is potentially a sexual assault unless done strictly according to their rules about obtaining prior consent to every action, no matter how innocuous, of every sexual encounter. There is no need to say "no." Without the presence of a prior "yes," the act is already an assault.
By this definition, millions of Americans — perhaps almost all sexually active people — become offenders. Previously, it was not thought necessary to ask verbally, "May I hold your hand?" or "May I kiss you now?," if a couple had been together for a while, or for months or years. It was recognized that either previous requests or implicit indications had given permission for a touch or a kiss. Men and women can and often do misread signals coming from someone to whom they are attracted, but it has not been thought appropriate to criminalize a touch or a kiss attempted in light of what seemed to be implicit assent.
Proponents of "affirmative consent" rules might argue that an explicit question is not necessary if there are proper social cues. But given the scope of the proposed definitions, the only safe way to be sure a person is consenting is to ask explicitly at every step of the sexual process. Thinking that a person "seemed into you" during a date would not be a strong enough social cue to presume the person wanted his or her hand held.
The law wouldn't apply only to first dates or similar new encounters, but would apply even in committed relationships. This means affirmative consent would be mandated for every sexual encounter, even to married couples. Given that divorce and custody cases frequently produce false accusations of child abuse, it's easy to imagine false accusations of sexual abuse proliferating if Schulhofer and Murphy's rules aren't followed every time a couple has sex.
Schulhofer and Murphy's draft makes clear "that when a complainant's behavior has been passive — neither expressly inviting nor rebuking the defendant's sexual advances, that behavior cannot be considered sufficient to show affirmative permission."
Silence and passivity could automatically be construed as unwillingness, and would make a "guilty" verdict far more likely. Indeed, Schulhofer and Murphy say this is what they want, writing in their draft that "the appropriate default position clearly is to err in the direction of protecting individuals against unwanted sexual imposition."
In other words, when in doubt, convict.
That drafters of the ALI's Model Penal Code want to make this the law shows just how far the rot in the legal profession has spread.