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.
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.
Schulhofer, a New York University law professor, has been on a crusade against rape since the 1990s. He told the Washington Examiner that when he began teaching criminal law, rape law was not part of the agenda. He was shocked that law students were not being taught such a crucial category of the criminal code.
"So I made a concerted effort to bring it into the classroom," Schulhofer said. "It was very controversial at the time. A lot of teachers did not want to get into it because it was too much of a minefield."
In 1998, he wrote Unwanted Sex: The Culture of Intimidation and the Failure of Law. In it, he challenged existing rape law and proposed a massive expansion of the legal system to address systemic flaws. One involved the issue of consent and ambiguity. Part of his solution was to use the legal system to engineer social change.
"But cultural change proceeds slowly, and porous legal standards leave many women at risk in the meantime," Schulhofer wrote in his book. "Legal reform can play a crucial part in the effort to raise public awareness and alter social assumptions about when sexual assertiveness should be considered abusive."
Using such a method to change how people have sex was also included in Schulhofer's draft of a model penal code.
"[A] vitally important function of the criminal law is to identify and seek to deter behaviors that pose unjustifiable risks, even when those risks are not yet universally understood," reads the draft. "[The criminal law] must often be called upon to help shape those norms by communicating effectively the conditions under which commonplace or seemingly innocuous behavior can be unacceptably abusive or dangerous."
Murphy is also an NYU law professor and Schulhofer's associate reporter for the draft. She told the Examiner that she joined the project because, as a woman, she "thinks deeply about these offenses on a day-to-day basis and sees both in my community and in the scholarly literature a real wrong that is going on unrecognized and un-remediated."
But Murphy also sees the other side of the equation. She was a public defender for five years and saw abuse of sex crime prosecutions including "overly harsh collateral consequences and penalties" and evidentiary rules that have "gone too far against protecting the rights of the accused."
She, too, mentioned using the criminal justice system to enact social change.
"It's interesting to me to see how quickly the mores have changed and to consider where they're going, where they're headed, what that might mean," Murphy said, adding that she and Schulhofer "wanted to bring some clarity to the system."
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.
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.
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.
When confronted with the idea that many innocent people would be wrongly accused and punished, Schulhofer falls back on extreme examples that all reasonable people agree amount to rape or sexual assault.
Talking to the Examiner, he described the example of a woman drinking heavily at a party and passing out on a couch, after which a man penetrates her with his finger while she is unconscious. Schulhofer says this is "not a crime under current law."
But actually, it is. The FBI definition of rape describes the crime as "penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim."
Schulhofer's scenario clearly fits that category.
For her part, Murphy told an ALI audience, "Obviously, no one ... would want to criminalize someone who reaches out to, you know, grab a hand or go in for the kiss," adding, "The problem is, of course, that it's not just people on dates to whom the sexual assault code applies, it also applies to people riding on the subway or walking down the street."
The acts that Schulhofer and Murphy set out to make illegal, which are actually already illegal, represent just a small number of the actions that their draft would make illegal.
When Schulhofer and Murphy presented their ideas in May, it at first appeared that they might win majority support. The first few comments from people were supportive, offering helpful tips about grammar and organization to strengthen the draft. One of the first comments, from a female lawyer from New York, addressed the issue of over-incarceration, but said opponents of the draft shouldn't be concerned with such matters since rape is an under-reported crime.
But after a couple of supportive comments, the tide turned, and speaker after speaker questioned the extreme lengths to which the two lawyers went to expand the definition of rape.
Some of the most articulate and persuasive critics were women. The most prominent and outspoken was feminist and former federal judge Nancy Gertner, who this year wrote for the American Prospect denouncing the way sexual assault accusations have created a hostile environment on college campuses. Gertner, one of the co-signers of the opposition letter, thought the draft should focus on areas of complete agreement instead of trying to use the ALI as a vehicle for social change.
"There's a very striking ... lax concern for false positives, the wrongful accusation of sexual misconduct that is inconsistent with the criminal law," Gertner said. "Like it or not, criminal law and criminal procedure are all about erring on the side of — erring against false positives."
Another woman, a former prosecutor who specialized in sex offenses, called the draft "really disturbing" and explained that Schulhofer's and Murphy's proposed rules were not in line with "how the world works."
"I look at this and say it feels like intellectually it makes sense, but we are criminalizing something and moving way past where our mores are," she said.
She added that she was able to prosecute crimes in which the victim was too drunk to give consent. "I have to prove more than if she said 'no,' but I can prosecute those cases and win those cases now."
When she returned to her seat, the lawyers sitting around her reached out to praise her for her comments.
One of the main concerns for those who oppose "affirmative consent" policies is how an accused person is supposed to prove they obtained consent when the only evidence is an accusation. Schulhofer and Murphy's draft shifts the burden of proof from the accuser to the accused, who would now have to show he — it is usually he — obtained consent in order to prove there was no assault.
This, according to the opposition letter, would make prosecutors' jobs incredibly easy. They could merely tell juries that they must find someone guilty because no evidence could be produced that consent was obtained. The prosecutor would need no evidence beyond the accusation, and could tell the accused: "Prove me wrong."
Asked about what evidence would be needed to prove that consent was obtained, Schulhofer raised the issue of credibility in a he said/she said situation, but said "that's not an issue that this draft really addresses."
But the draft explains that the "default position" should be to err on the side of the prosecution.
Murphy's answer was simply that "hopefully" there would be enough evidence to say one way or the other.
For now, their draft is going nowhere at ALI as long as members continue to oppose it as they did this year. The next chance for comment, and to see if Schulhofer and Murphy listened to criticism and updated their draft, will be in October.
Even though "yes means yes" has failed to gain traction in most states where it's been introduced, with the continued focus on sexual assault in the media and academia, Schulhofer and Murphy will not be the only ones to propose expanding California's policy across the nation. Unless more people take notice of the proposals, we could be just a few years away from having the government tell us how to have sex.