Obtaining sex through “deception,” “concealment,” or “artifice” could violate consent. A group of New York lawmakers is trying to redefine consent in a way that would make it a crime to be less than fully truthful with sex partners. Under the new proposal, antics now considered merely caddish or immoral—like lying to a prospective sex partner about one’s relationship status, social standing, or future intentions—would count as criminal sexual misconduct.
Now in committee, Assembly Bill A6540—sponsored by Assembly Member Rebecca Seawright (D–New York City) and co-sponsored by three other Democratic lawmakers—would amend New York state’s penal code to define 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.”
Sex through “forcible compulsion” is already considered rape in the first degree under New York law. The biggest change Seawright’s bill would have is on the state’s law against sexual misconduct.
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.” Thus, if consent is 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).
This could open the floodgates of criminal prosecution (and civil suits) involving any number of wrong but incredibly common situations among sexual partners. Telling a prospective sex partner that you’re single when you’re actually married or in a relationship would seem to fit the bill. So, too, would trying to get laid by professing more interest in a future relationship than one actually has.
Women could be guilty for lying about contraceptive use or menstrual cycles, and men for lying about having a vasectomy.
Trying to win over a date by saying you have a better job than you actually do, live in a nicer place, or went to a better school could become a crime if that date sleeps with you. Any half-truths—or even omissions—about your social or financial status could possibly count as artifice or “concealment.” So could lying or concealing information about one’s race, ethnicity, religion, etc.
Someone might try to sue or press charges based on the idea that makeup, Botox, boob jobs, and similar measures to enhance one’s appearance should count as illegal artifice that negates consent. It also seems likely that people could attempt to use the law against transgender or gender non-conforming people.
The New York bill isn’t the first time lawmakers have tried something like this; for a while, there’s been a consistent but marginalized attempt to make “rape by deception” or “rape by fraud” crime. For instance, a New Jersey legislator attempted in 2014 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.” (The attempt failed.)
But “‘rape-by-deception’ is almost universally rejected in American criminal law,” as Yale University law professor Jed Rubenfeld noted in the 2013 article “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy.”
As UCLA law professor and blogger Eugene Volokh noted back in 2010, it’s only a crime here 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 woman’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.
Will New York change that?
Seawright apparently 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.
Seawright’s measure is being championed by two women, Tarale Wulff and Dawn Dunning, who 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. The change would “make sexual assault crimes…easier to prosecute,” Dunning said.
It’s hard to see how adding all sorts of new layers to the definition of consent, and vague new ways to violate it (what exactly is artifice in this context?), will make things less confusing. There’s no doubt, however, that it would make it easier for law enforcement to define people as sex offenders and attempt to prosecute them.
When will people learn that defining a broader and broader category of behavior as sex crimes doesn’t actually help stop sexual assaults or increase justice, it just funnels more people into the criminal justice system and creates new opportunities for law enforcement harassment, discrimination, and abuse?
FREE MINDS
Tennessee attempts to mandate certain sorts of media coverage. A new measure in the Tennessee House states:
A media outlet shall provide equal coverage in comparable time, place, magnitude, prominence, scale, and manner in the same format as the original reporting of a case and controversy, if:
the media outlet reported on the facts of a case and controversy and the final verdict provided less relief against the accused than originally sought by the petitioner or less than could have been obtained by the petitioner; and
(2) The accused or the authorized agent of the accused sends an electronic or written notice demand to an authorized agent of the media outlet within twenty (20) days after the verdict or outcome, demanding that the facts surrounding the final and actual decision or outcome be reported and published as a follow–up to the original reporting.
Siri, show me a bill that will never pass 1st Amendment scrutiny. https://t.co/uoGhG6rIRU
— Mike Masnick (@mmasnick) April 8, 2021
FREE MARKETS
Biden nominates new ATF head. David Chipman—known for strong gun control views (and for spreading lies about the federal government’s disastrous siege of the Branch Davidian compound in Waco, Texas)—is President Joe Biden’s nominee for Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the main federal agency tasked with enforcing U.S. gun laws. Chipman has recently been serving as senior adviser to former Congresswoman Gabby Giffords’ gun control group. For more than two decades, he worked for ATF, a tenure that included working as a case agent on the Branch Davidian trial.
QUICK HITS
• New Mexico has abolished qualified immunity!
• “Washington promised to bring liberal democracy” to Afghanistan, notes Ezzatullah Mehrdad at Foreign Policy. “It created a bloated and ineffective sector of artificial NGOs instead.”
• A moving look at one young woman’s route to transitioning and then detransitioning:
This story doesn’t negate or predict anyone else’s experiences.
It’s one young woman telling us about her life. It’s powerful and valuable.
And it took courage. https://t.co/dsABVG40u1
— Caitlin Flanagan (@CaitlinPacific) April 8, 2021
• Rep. Matt Gaetz’s (R–Fla.) friend allegedly bringing adult sex workers on a trip to the Bahamas that Gaetz also attended is the latest reason some are trying to define Gaetz as a sex trafficker. (“What began with blaring headlines about ‘sex trafficking’ has now turned into a general fishing exercise about vacations and consensual relationships with adults,” a Gaetz spokesperson told CBS News.)
• “Fair speech” versus free speech.
• Is the Great Stagnation over?
• Protecting and serving:
Four months after paying out $475,000 to the victim of one violent traffic stop (see https://t.co/w7CLX0WFpw), Euclid is paying out $450,000 to the victim of another violent traffic stop. https://t.co/P9Rra7Lu0c pic.twitter.com/cFJIkee3l9
— Peter Bonilla (@pebonilla) April 7, 2021
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