ALBANY, NY- The slide down the slippery slope continues, with the latest edition being brought to you by a member of the New York Assembly.
A bill, called Assembly Bill A6540 would make it a violation of “consent” if someone obtains sex through deception, concealment or artifice.
This bill would redefine consent—and therefore make it sexual assault—if someone was less than truthful with sex partners. The ramifications of such a law are downright scary.
For example as Reason noted, under this proposal so-called antics which are considered dishonorable or maybe immoral—such as lying to a prospective sex partner about things such as relationship status, social standing or future intentions—would count as criminal sexual misconduct.
The bill, which is currently in committee is sponsored by Assembly Member Rebecca Seawright (D-NYC) and co-sponsored by three other Democratic lawmakers—would amend New York State’s penal code and redefine consent as “freely given knowledgeable and informed agreement” that is “obtained without the use of malice such as forcible compulsion, duress, coercion, deception, fraud, concealment or artifice.”
Obtaining sex through “forcible compulsion” already considered rape in the first degree under New York law. The biggest change the proposed bill would impact is on New York State’s law on sexual misconduct.
The current statute on sexual misconduct says a person becomes guilty of sexual misconduct if:
“…he or she engages in sexual intercourse with another person without such person’s consent; or he or she engages in oral sexual conduct or anal sexual conduct with another person without such person’s consent.”
In other words, if consent then becomes defined as sex obtained without any deception, concealment or artifice, anyone who lies to or omits information from a prospective sexual partner would be guilty of sexual misconduct (a class A misdemeanor).
So, let’s examine the ramifications of such a bill, which would likely “open the floodgates of criminal prosecution (and civil suits) involving a number of wrong but incredibly common situations among sexual partners.”
For example, Joe Six Pack is in a bar on a business trip, leaving his six-month pregnant wife at home. He sees a good looking lady at the bar, buys her a few drinks during which he tells her that he’s single.
They retire upstairs for some after drink activities, and in the middle of everything, she finds out he’s married. Under the proposed law, that would seem to make him guilty of sexual misconduct, since he used deception in order to score some extra curricular sex.
What about being involved in a longer-term relationship for someone who has wedding bells dancing through their heads.
Things are going well, and the girl tells the guy that yeah, she’s looking for a long-term relationship and starts talking about a possible wedding, despite the fact that she has no intention of getting hitched.
Down the road, she breaks off the relationship and tells the guy that she was never really interested in getting married. Once again, deception enters the picture.
What if a woman tells her lover that she’s on birth control when she’s not, or a guy tells a lady he’s had a vasectomy, and neither case is the truth. Once again, they are using deceit in order to gain sexual access.
The list goes on and on—you tell a partner you’re a vice-president at a technology firm when you’re really the opening manager at McDonalds, you live in a 20-room mansion in the suburbs when you live in mama’s basement, or you went to an Ivy League school when you graduated from community college—all to boost status in the eyes of a prospective partner.
Yup, sexual misconduct.
As Reason says, any half-truths or even omissions about factors such as social or financial status could be defined as “artifice” or “concealment,” or even lying about one’s race, ethnicity or religion.
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What about physical enhancements? Botox, breast enhancements, butt lifts, hair implants—all would seem to count as an illegal artifice that negates consent. And, as Reason notes the law could possibly be used against…transgender or gender non-conforming people.
And you know that won’t go over big.
Such a law would make it almost like people who were dating would need to have some type of a legal document in order to consummate the relationship. Maybe that’s the idea, to give lawyers more business either pre-sex or post-sex.
You thought filling out mortgage paperwork was time consuming? Can you imagine the paperwork involved in this cluster? Kind of takes the whole romance thing out of the equation, no?
This isn’t the first time such a nonsensical bill has been proposed, with Reason noting that lawmakers in various states have long tried to make “rape by deception” or “rape by fraud” a crime.
For example, in 2014, a New Jersey state legislator tried to criminalize “an act of sexual penetration to which a person has given consent because the actor has misrepresented the purpose of the act or has represented he is someone he is not,” a proposal which went down in flames.
According to Yale University law professor Jed Rubenfeld, such “rape by deception” schemes are pretty much universally rejected in American criminal law, as he noted in a 2013 article, “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy.”
Yet another law professor, UCLA’s Eugene Volokh said back in 2010, that it is only a crime in the U.S. in very specific circumstances:
“Note that under American law, sex for which consent is procured by a lie is generally a crime only
(1) when the fraud relates to the nature of the act (i.e. the defendant claimed he was a doctor who was going to medically examine the women’s genitals, or perhaps even administer a medical cure by having sex with her), or
(2) in some states when the defendant impersonated the woman’s husband. There was a proposal last year in Massachusetts that would have generally criminalized rape by fraud, and I blogged about it here; but to my knowledge it didn’t go anywhere.
And while a few American rape statutes might already criminalize sex procured through false statements (or provide as to crimes generally that ‘assent does not constitute consent if…[I]t is induced by force, duress, or deception’), I know of no cases applying those statutes in the typical lying-to-get-sex case.”
So, with all of that in mind, will New York be able to change that? Well Seawright hopes so.
“The proper definition of consent in New York’s laws will clarify lawful sexual conduct, guide behavior and make it possible to hold sexual predators accountable,” she said in a statement.
Two women who hope Seawright’s measure passes are Tarale Wulff and Dawn Dunning, both of whom testified at Harvey Weinstein’s rape trial last year.
“In part of Harvey’s final statement at his sentencing, he commented that he felt confused, and he thinks that most men are confused.”
So by defining this consent, there will be no more confusion,” Wulff told ABC News. She said the change would “make sexual assault crimes…easier to prosecute.”
Ah, so men are confused…not women?
As Reason notes, by adding “new layers” to the definition of consent, while adding “vague new ways to violate it,” will that in fact clarify consent or merely muddy the waters? What is the end game? To define more people as sex offenders, and therefore prosecute them?
More ominously, is this just a continuation of the left’s war on men?
Look, nobody is excusing sexual assault. It is vile, and it is disgusting. But broadening the definition of sexual misconduct does nothing but criminalizes something that is, like it or hate it, part of the whole courting and dating thing.
Look at it this way. This law would criminalize things such as a guy bragging about his sexual prowess or physical attributes when neither are true, and conversely would criminalize a woman telling a guy that she’s into certain activities and then when the time comes to rock and roll, she gets all indignant and feigns a headache. You get the point.
Broadening the definition of sex assault and sexual misconduct will do nothing to stop sexual assaults, nor will it increase justice. It will only serve as a means to go after and prosecute someone for simple mistruths, and this, as we said is a ride down a slippery slope.
Little white lies don’t deserve prosecution, only moving on.
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