Tuesday, June 17, 2014

Consent in Sexual Matters

I'm not a lawyer, by any means, but there are some facets of law that are interesting and worthwhile to consider. In Dewayne Williams v. State of Alabama (#CR-12-1385), an Alabama Appeals Court recently declared the state's sexual misconduct law unconstitutional. Lots of people are obviously celebrating that (although contrary to what is being reported, it wasn't the sodomy law but the sexual misconduct law that was at issue), and there's no question but that the law is inconsistent with prior rulings of the U.S. Supreme Court. But one of the things that makes the case interesting is if you actually read what the situation was. It was a rape case. Williams was charged with sodomy in the first degree (felony) and sexual misconduct (misdemeanor) for raping a young man in a hotel bathroom. Why was the rape case being handled under the sodomy and sexual misconduct law rather than the rape law (I've seen people ask)? Because under Alabama law 'rape' is technically defined as something done to a woman. 'Sodomy' is the term for rape of a man in Alabama law. In this case, the evidence was such that the jury remained uncertain whether the allegedly raped man had ever given consent or not; and because of that, it could not convict Williams of the strict rape charge, which was sodomy in the first degree -- the only evidence for lack of consent was indirect. It did, however, convict him of sexual misconduct. This came to appeal, and the prosecution, recognizing the sexual misconduct law was broad enough that it might be ruled unconsitutional, asked the court of appeals to interpret the sexual misconduct statute in a way that would not be inconsistent with Lawrence v. Texas, and allow a new trial for nonconsensual sex under the lesser offense. (This would have allowed them to argue that, while the strictest standard for proving lack of consent could not be met, nonetheless there was evidence of lack of consent that would survive a lighter standard for a lesser offense.) The appeals court denied that it could do that, and therefore struck it down entirely.

One of the things that makes the case interesting is that it underlines the point that a number of feminist critics of rape laws have made: if consent is the primary issue in rape law, it guarantees significant miscarriages of justice. Sexual consent is a slippery notion in the first place, and it virtually always occurs under circumstances of extreme privacy; but to make consent a viable way of handling these matters, it has to be treated as a very strict, definite concept requiring strict standards of evidence. Treating consent as the essential matter in a rape case throws almost all the burden of proof on the victims. This contrasts with another possible approach to rape, in which one treats it as assault is treated in many jurisdictions: consent is still relevant, but the burden on the alleged victim is just to prove that the act actually happened (of which there was no doubt in this case), and then the accused must establish that they took reasonable steps to secure the privilege of acting that way against the alleged victim.

The alternative, of course, is to treat laws governing sexual behavior as a sort of contract law, with all that this implies. There is currently a bill before the California legislature that does exactly that for college students: it requires, on pain of losing funding, that colleges have an affirmative consent standard: "an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity". (Contrary to the way it is reported, the bill as it is being considered allows the consent to be conveyed verbally, in writing, or by unambiguous action.) Requiring colleges to implement policies based on requirements of explicit consent, of course, is somewhat different than imposing such a standard directly. But something like it really is required to make the concept of consent definite enough to be useful in sexual matters -- if consent is made central, you must actively treat it in a way that allows you to have standards that can be handled in courts of law, or you're really not doing much.

In the Williams case, we are dealing with a situation in which there were reasons to doubt that it was consensual, but not enough to rule out definitely that it was not. Outside of well-written contract law, this kind of situation is unavoidable when dealing with consent. Either one must take that into account or one must build the law around something other than consent. One of the things the Alabama Appeals Court pointed out was that a new trial was impossible because by not being convicted of sodomy in the first degree, under Alabama law this for all practical purposes meant that he was acquitted of nonconsensual sex, period. This shows a problem with the law as written: the standards of consent are quite low, since, assuming that the person in question is an adult, nonconsensual sex requires either provable forcible compulsion or physical or mental incapacity to consent. Forcible compulsion, in turn, is defined as "Physical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person." This means there are lots of situations that we could reasonably think of as involving forcible compulsion that don't count as 'forcible compulsion' under the law. For instance, if A threatens B that someday he will kill him if he doesn't do something, that's not a threat that has much to do with 'fear of immediate death'. Or if A threatens B with B's spouse losing a job that is really crucial to paying the bills, it's not forcible compulsion; economic threats are not threats of immediate death or physical injury. And this sort of thing has been pointed out by feminist critics of other rape laws, as well; and it's a very difficult thing for a rape law to account for adequately -- if it is based on consent. The old way it was handled was something like what the prosecution tried here -- you deal with it under a lesser but broader offense category. This is increasingly difficult to do, though, for the obvious reason that the broader offenses raise many more political questions than they used to raise. And as that happens, cases like this, in which victims cannot meet the strict standards required for proving that they did not consent, in the strict and limited sense defined by law, but could nonetheless prove that they did not consent in a less strict sense according to a less strict standard, will fall through the cracks.

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