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.
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.
This would include kissing, hugging and holding hands!
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.
Basically wives and husbands could accuse each other of sexual assault if they didn’t say affirmatively ‘yes’ but meant it.
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.
Opponents give some examples of why this law is insane.
Opponents say the draft would further burden an already over-criminalized and over-incarcerated American public.
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.