NCSF hopes to collect thousands of signatures and plans to submit our petition in September prior to the next meeting of the American Law Institute which is considering making changes in the Model Penal Code provisions relating to sexual assault.
NCSF has urged the ALI Committee to treat BDSM under a category they define as “sexual contact” even if there is no contact with the breasts or genitals. Under the ALI’s draft proposal, “sexual contact” is not a crime if consent is given for such contact. If consent is not given, sexual contact is a misdemeanor, not a felony. Such treatment of BDSM—as not a crime if consensual and as a misdemeanor if nonconsensual—would be fully consistent with the concept that BDSM is intended to be a mutually pleasurable activity rather than an act of violence. If a rape is committed in a BDSM encounter then it can be prosecuted as felony sexual assault and the fact that BDSM activities were also included will reduce the confusion for prosecutors and courts. Judgment can be made solely in the context of whether there was consent for each act that was committed.
A further benefit of our proposal would be that a person who is injured in a nonconsensual BDSM incident would have the shelter of “rape shield” rules, which prohibit introduction of evidence of prior acts and provides the victim anonymity. This protection applies to complaints in sexual assault cases, but not in criminal assault cases. People who are assaulted in a BDSM context typically choose not to report what happened to the police because they will be outed as kinky by the public court documents and they may even face media exposure if their assailant is charged with criminal assault rather than sexual assault.
But first we need to persuade the ALI to agree with our proposal, or at least something like our proposal.
Petition to the American Law Institute:
Consent should be a Defense for BDSM activities
I urge the American Law Institute in its consideration of proposals to revise the Model Penal Code (MPC) provisions relating to sexual assault, to provide in the MPC that prosecutions arising from BDSM (bondage, discipline, Dominance & Submission and sadomasochism) conduct be pursued as “sexual contact” rather than as criminal assault. I believe this is appropriate because consensual BDSM is intended to be a mutually pleasurable erotic activity and not a violent assault by one person against another. Criminal prosecution may be appropriate if consent is not given, but consent should be allowed as a defense.
National Consent Month embraces the freedom of expression that comes with informed consent.
Join us by dedicating one of your events or workshops during the month of September to consent. Let us know the date of your event, and we'll put it on our calendar and publicize it on our social media.
Get your “Got Consent?” T-shirts, mugs and dog tags in the NCSF shop!
Submit photos of your Consent Month celebration to our Consent Photo Contest. We’ll post the photos and award the winner top billing on our Consent Month website for the rest of the year. You’ll also be featured in an NCSF media campaign about Consent Month.
Consent Month is proudly sponsored by the National Coalition for Sexual Freedom and the Arizona Power Exchange.
Thank you for celebrating September as Consent Month!
Shoes, catheters, even pacemakers and dacryphilia: academics have made it their duty to study the ever-expanding catalogue of things that turn people on
by Marc Abrahams
On 28 October 2004 we humans took a giant step towards cataloguing all of our sexual fetishes. An Italian/Swedish research team, led by Claudia Scorolli at the University of Bologna, downloaded data from hundreds of online fetish discussion groups and spent the next three years analysing their haul. Then they published a study in the International Journal of Impotence Research: Relative Prevalence of Different Fetishes.
Many fetishes concern body parts, the catalogue reveals. Feet and toes lead the list, followed in order of frequency by body fluids (blood, urine, etc), then body size (slim, stout, short, tall, whatever) and head hair. The least coveted bits by fetishists are nails, nose, ears, neck and, in last place, body odour.
Other fetishes documented centre on objects associated with the body. Stockings, skirts, footwear and underwear are the most popular. The list eventually dribbles out, with some – but few – people erotically craving nappies, hearing aids, catheters and, dead last, pacemakers. Only two people are tallied as having a sexual preference for pacemakers. The catalogue does not specify whether the pacemakers are inside people, or in their boxes, or not.
Psychiatrists also do this kind of research, assaying the range of raunch to decide what – to their professional satisfaction – should be officially considered a fetish. The profession’s bible of treatable and billable conditions, the Diagnostic and Statistical Manual of Mental Disorders (DSM), must be kept up to date.
In the world of psychiatry, the big name in fetish definition maintenance is Kafka – Dr Martin P Kafka, of McLean hospital in Belmont, Massachusetts. In the wake of the Scorolli fetish survey – performed by non-psychiatrists, and thus of questionable use to mind doctors – Kafka published two studies updating the fetish situation for his professional peers.
The Kafka writings appeared in the Archives of Sexual Behavior, in 2010, with the titles The DSM Diagnostic Criteria for Fetishism and The DSM Diagnostic Criteria for Paraphilia Not Otherwise Specified.
Paraphilia is a word that some psychiatrists find fascinating. It means “the experience of intense sexual arousal to atypical objects, situations, or individuals”. In the old days, people called it “sexual perversion” or “sexual deviance”. Kafka inspects what he calls the “not otherwise specified” categories of paraphilia: telephone scatologia (obscene phone calls), necrophilia, zoophilia, urophilia, coprophilia and partialism. Google at your own risk. ...
to put your hand on the other person's butt during foreplay? What if you had to
ask again before touching her breast? What if there was a law that said you had
to do this?
In New York, there is now on all college campuses. A bill signed into law July 7 requires both parties to obtain consent for sex and each nibble and caress that sometimes paves the way. The law applies only on college campuses. At its heart is a simple concept: instead of "No Means No," it's "Yes Means Yes."
It switches the dynamic of consent in what could be an empowering way. The hope is that by changing the power structure of the hook-up and making it law, college sexual assaults will decrease. The legislation, proposed by Gov. Andrew Cuomo and called "Enough is Enough," was passed unanimously by the state Legislature.
It's difficult to find fault with the law's goal of reducing sexual assault. But some, including feminists and legal scholars, say laws like New York's overstep, and risk turning into a criminal someone who honestly misread a sexual cue. And the laws ask college students to turn into a contract what is often a fumbling dance for otherwise sophisticated adults.
The law is not a criminal one, but violating it could result in criminal charges, as well as disciplinary action by the school. Colleges in New York have until September of 2016 to comply by re-rewriting their conduct codes and policies.
New York and California are the only states with affirmative consent laws, and they only apply to college campuses. But there is a movement to make the same laws apply for everyone. The American Law Institute, which helps write the nation's criminal codes, is in the process of re-writing the sexual assault penal code to incorporate "Yes Means Yes."
As Lady Gaga penned an essay with Cuomo in Rolling Stone to gain support for New York's college law, two dozen legal scholars, including retired federal Judge Nancy Gertner, wrote a memo warning against the dangers of such laws.
In Syracuse, Mayor Stephanie Miner, a lawyer, refused to sign on as a supporter while Syracuse University Chancellor Kent Syverud penned an op-ed in support of it.
A hook-up contract?
No matter what precautions you take, the hook-up now poses serious legal risks: "You look at the legal system we're building and it's incredible risky to hook up with someone you're not married to," said Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University in Florida.
"It changes the rules of the game. It gives the game rules," Lake said.
The national push for restrictive rules and laws comes at a time when attitudes and practices around sex are becoming riskier, Lake said.
And the New York and California laws don't address binge drinking on college campuses, except to say that a person cannot give consent if they are under the influence.
Lake and some other legal scholars have said the laws threaten to make it much easier to falsely accuse someone of rape and sexual assault.
Lake said college students are already figuring out the work-around to the rules to avoid being caught up in sexual assault allegations. They've realized that it's much less risky to hook up with someone who doesn't go to your school. "It's hard to investigate on another campus," Lake said.
There is a movement to extend the same consent rules to everyone. The draft sexual assault law being written by the American Law Institute would make sex without express consent a misdemeanor anywhere. The institute, made up of legal scholars and judges, writes draft penal codes that are often adopted by states and the federal government. ...
Anti-gay Christian groups claim that some America’s major retail brands are supporting “sadomasochism” and “perverted behaviour” by sponsoring gay pride events across the country.
Some of America’s biggest commercial names – including Wal-Mart, Delta Airlines, AT&T, and Diet Coke – showed their support for the LGBT community last month, by sponsoring a number of events and parties during New York City’s annual Pride weekend, including the city’s huge pride parade.
However, many “pro-family” groups are unhappy with the brands’ decision to show solidarity with the gay community, and have accused them of encouraging “sadomasochism” and “perverted behaviour”.
Rather than avoid an event he clearly finds offensive, Peter Barbera, president of homophobic movement ‘Americans for Truth About Homosexuality’, decided to attend the pride parade on June 28.
He was particularly outraged by a Wal-Mart float, that was included in the event and “featured public nudity and vulgarity – with children present.”
“It’s really a mirror into the households of homosexual-led households,” LaBarbera told ultra-conservative news website OneNewsNow.
LaBarbera sees inconsistency in Wal-Mart’s handling of issues considered “controversial”. He points out that despite sponsoring activities in support of the “homosexual lifestyle”, the retailer recently decided that items displaying the Confederate battle flag – often used by anti-gay right wing groups – were too controversial to appear on its shelves.
“But apparently a homosexual parade, which is celebrating beyond homosexuality – they celebrated sadomasochism, lots of perverted behavior, even open nudity in this parade – apparently none of this was too controversial for Wal-Mart to be involved in sponsoring this parade,” he adds.
LaBarbera is encouraging others that are opposed to supporting and welcoming the LGBT community to boycott on all brands involved in LGBT Pride parades. ...
...The real question is: why would anyone argue for the equal legal recognition of plural marriage given that it has existed for centuries but never taken the hoped-for egalitarian social form? Mr DeBoer asserts that, “Polyamory”, the name given to egalitarian adult romantic networks, “is a fact. People are living in group relationships today.” Yet he cites no studies of the prevalence of this arrangement—or its effects—because there are none. The evidence of polyamory is entirely a matter of anecdote, speculation and free-love advocacy. In no Western society is there any broad social movement for polygamous or “polyamorous rights” equivalent to the decades-long struggle for the rights of gay, lesbian and transgendered citizens. Responsible liberal societies ought to reform complex social institutions such as marriage on the basis of reliable evidence and widely available social knowledge.
Let me be clear: I am not arguing that polygamy is “inherently immoral”, as some have asserted in the past with respect to both plural and same-sex relations. I also allow that in particular instances polygamous families can be successful and healthy. But the general human experience with polygamy–past and present–suggests to me that there are weighty and legitimate grounds for concern here that allow us to distinguish plural and same-sex marriage.
So I agree with the libertarians that consensual plural cohabitation should not be prosecuted. Tolerance has been the de facto policy across America for decades, though we may need clarification on that score. A clear policy of toleration would be sufficient to allow respectable polygamists now living in the shadows to emerge. No doubt we will continue to learn about this “experiment in living”. But equal legal recognition of polygamous marriage requires positive evidence that this is a general social form that serves the interests of adults, children and society generally in a way that is consistent with our basic constitutional commitments to equal liberty and fair opportunity. Whatever the libertarians might say, the public morality of a liberal society not only allows but requires reasonable efforts to preserve important social institutions that are conducive to equal freedom and fair opportunity for all.
The libertarians are right about one thing: no one knows how these matters will look 100 years from now. But why should we expect future generations to look favourably on radical social experiments conducted in the absence of supportive evidence? And why would we credit their judgment if they did? History’s arc, as best we can now tell, bends away from the plural marriage and toward monogamy, gender equality, and same-sex marriage.
Chief Justice John Roberts prompted the discussion with remarks from his dissent after the Supreme Court ruled for same-sex marriage.
Christian Science Monitor
By Sara Aridi
Last week’s ruling for the legalization of same-sex marriage has spurred another marriage debate. Is America ready for legalized polygamy?
The conversation came up after Supreme Court Chief Justice John Roberts made this statement in his dissent:
“Although the majority randomly inserts the adjective 'two' in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.”
His remarks encouraged others to reconsider the plausibility of legalizing polygamous marriage.
On Wednesday, Montana man Nathan Collier said the Supreme Court’s decision to legalize same-sex marriage inspired him to apply for a marriage license so he can legally wed his second wife, The Associated Press reported. "It's about marriage equality," Collier said. "You can't have this without polygamy."
Some are now claiming it’s time to consider whether the idea of legalized polygamy is as far-fetched as the idea of same-sex marriage sounded 20 years ago.
In an argument for legalized polygamy, Politico’s Fredrik Deboer writes, “Marriage should be a broadly applicable right – one that forces the government to recognize, as Friday’s decision said, a private couple’s ‘love, fidelity, devotion, sacrifice and family.’” In a blog post explaining why he wrote the article, Deboer repeatedly referred to his belief in a “natural moral right to group marriage.”
However, many Americans don't see eye to eye with Deboer's belief. A recent Gallup poll found that only 16 percent of Americans find polygamy morally acceptable, an increase of seven percent in 2001. ...
THIS is a strange moment for sex in America. We’ve detached it from pregnancy, matrimony and, in some circles, romance. At least, we no longer assume that intercourse signals the start of a relationship. But the more casual sex becomes, the more we demand that our institutions and government police the line between what’s consensual and what isn’t. And we wonder how to define rape. Is it a violent assault or a violation of personal autonomy? Is a person guilty of sexual misconduct if he fails to get a clear “yes” through every step of seduction and consummation?
According to the doctrine of affirmative consent — the “yes means yes” rule — the answer is, well, yes, he is. And though most people think of “yes means yes” as strictly for college students, it is actually poised to become the law of the land.
About a quarter of all states, and the District of Columbia, now say sex isn’t legal without positive agreement, although some states undercut that standard by requiring proof of force or resistance as well.
Codes and laws calling for affirmative consent proceed from admirable impulses. (The phrase “yes means yes,” by the way, represents a ratcheting-up of “no means no,” the previous slogan of the anti-rape movement.) People should have as much right to control their sexuality as they do their body or possessions; just as you wouldn’t take a precious object from someone’s home without her permission, you shouldn’t have sex with someone if he hasn’t explicitly said he wants to.
And if one person can think he’s hooking up while the other feels she’s being raped, it makes sense to have a law that eliminates the possibility of misunderstanding. “You shouldn’t be allowed to make the assumption that if you find someone lying on a bed, they’re free for sexual pleasure,” says Lynn Hecht Schafran, director of a judicial education program at Legal Momentum, a women’s legal defense organization.
Most people just aren’t very talkative during the delicate tango that precedes sex, and the re-education required to make them more forthcoming would be a very big project. Nor are people unerringly good at decoding sexual signals. If they were, we wouldn’t have romantic comedies. “If there’s no social consensus about what the lines are,” says Nancy Gertner, a senior lecturer at Harvard Law School and a retired judge, then affirmative consent “has no business being in the criminal law.”
Continue reading the main story
PERHAPS the most consequential deliberations about affirmative consent are going on right now at the American Law Institute. The more than 4,000 law professors, judges and lawyers who belong to this prestigious legal association — membership is by invitation only — try to untangle the legal knots of our time. They do this in part by drafting and discussing model statutes. Once the group approves these exercises, they hold so much sway that Congress and states sometimes vote them into law, in whole or in part. For the past three years, the law institute has been thinking about how to update the penal code for sexual assault, which was last revised in 1962. When its suggestions circulated in the weeks before the institute’s annual meeting in May, some highly instructive hell broke loose.
In a memo that has now been signed by about 70 institute members and advisers, including Judge Gertner, readers have been asked to consider the following scenario: “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. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).”
Far-fetched? Not as the draft is written. The hypothetical crime cobbles together two of the draft’s key concepts. The first is affirmative consent. The second is an enlarged definition of criminal sexual contact that would include the touching of any body part, clothed or unclothed, with sexual gratification in mind. As the authors of the model law explain: “Any kind of contact may qualify. There are no limits on either the body part touched or the manner in which it is touched.” So if Person B neither invites nor rebukes a sexual advance, then anything that happens afterward is illegal. “With passivity expressly disallowed as consent,” the memo says, “the initiator quickly runs up a string of offenses with increasingly more severe penalties to be listed touch by touch and kiss by kiss in the criminal complaint.”
The obvious comeback to this is that no prosecutor would waste her time on such a frivolous case. But that doesn’t comfort signatories of the memo, several of whom have pointed out to me that once a law is passed, you can’t control how it will be used. For instance, prosecutors often add minor charges to major ones (such as, say, forcible rape) when there isn’t enough evidence to convict on the more serious charge. They then put pressure on the accused to plead guilty to the less egregious crime.
The example points to a trend evident both on campuses and in courts: the criminalization of what we think of as ordinary sex and of sex previously considered unsavory but not illegal. Some new crimes outlined in the proposed code, for example, assume consent to be meaningless under conditions of unequal power. Consensual sex between professionals (therapists, lawyers and the like) and their patients and clients, for instance, would be a fourth-degree felony, punishable by significant time in prison.
It’s not that sex under those circumstances is a good idea, says Abbe Smith, a Georgetown law professor, director of the school’s Criminal Defense and Prisoner Advocacy Clinic, and an adviser to the American Law Institute’s project on sexual assault. “It’s what my people would call a shanda, mental health professionals having sex with their clients,” says Ms. Smith. (“Shanda” is Yiddish for scandal.) But most of these occupations already have codes of professional conduct, and victims also have recourse in the civil courts. Miscreants, she says, “should be drummed out of the profession or sued for malpractice.”
It’s important to remember that people convicted of sex crimes may not only go to jail, they can wind up on a sex-offender registry, with dire and lasting consequences. Depending on the state, these can include notifying the community when an offender moves into the neighborhood; restrictions against living within 2,000 feet of a school, park, playground or school bus stop; being required to wear GPS monitoring devices; and even a prohibition against using the Internet for social networking.
We shouldn’t forget the harm done to American communities by the national passion for incarceration, either. In a letter to the American Law Institute, Ms. Smith listed several disturbing statistics: roughly one person in 100 behind bars, one in 31 under correctional supervision — more than seven million Americans altogether. “Do we really want to be the world leader of putting people in cages?” she asked.
Affirmative-consent advocates say that rape prosecutions don’t produce very many prisoners. They cite studies estimating that fewer than one-fifth of even violent rapes are reported; 1 to 5 percent are prosecuted and less than 3 percent end in jail time. Moreover, Stephen J. Schulhofer, the law professor who co-wrote the model penal code, told me that he and his co-author have already recommended that the law do away with the more onerous restrictions that follow from being registered as a sex offender.
I visited Mr. Schulhofer in his office at New York University Law School to hear what else he had to say. A soft-spoken, thoughtful scholar and the author of one of the most important books on rape law published in the past 20 years, “Unwanted Sex: The Culture of Intimidation and the Failure of Law,” he stresses that the draft should be seen as just that — notes from a conversation in progress, not a finished document.
But the case for affirmative consent is “compelling,” he says. Mr. Schulhofer has argued that being raped is much worse than having to endure that awkward moment when one stops to confirm that one’s partner is happy to continue. Silence or inertia, often interpreted as agreement, may actually reflect confusion, drunkenness or “frozen fright,” a documented physiological response in which a person under sexual threat is paralyzed by terror. To critics who object that millions of people are having sex without getting unqualified assent and aren’t likely to change their ways, he’d reply that millions of people drive 65 miles per hour despite a 55-mile-per-hour speed limit, but the law still saves lives. As long as “people know what the rules of the road are,” he says, “the overwhelming majority will comply with them.” ...