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"Ask the Lawyer: 'Open' marriage as defense vs. adultery charge"

on Thursday, 16 July 2015. Hits 334

Military Times

by Mathew B. Tully

Q. My wife and I have an open marriage. Can I be charged with adultery even though she allows me to sleep with other women?

 

A. Military swingers beware: A spouse's consent to sleep with other men or women will not save you from a conviction on the charge of adultery in violation of Article 134 of the Uniform Code of Military Justice.

 

Adultery, an offense unique to the military, occurs when a service member has sexual intercourse with someone who is not his or her spouse or who is married to someone else. This conduct must be service discrediting or prejudicial to good order and discipline. You'll notice that this offense is triggered by sexual intercourse, regardless of whether it is consensual.

 

In the 2013 case U.S. v. David J.A. Gutierrez, the appellant, an Air Force technical sergeant, tried to fight an adultery charge by arguing that he and his wife had an open marriage and she consented to his sexual activities outside their union. He argued that "adultery requires a victim spouse and that a spouse who consents is not a victim," according to the U.S. Air Force Court of Criminal Appeals.

 

But the court rejected this argument that a spouse's consent can be used as a defense to an adultery charge. On appeal, the U.S. Court of Appeals for the Armed Forces earlier this year affirmed Gutierrez's adultery conviction, stating: "Participation of the appellant's wife in the offense is immaterial to the question presented, which is whether the government presented legally sufficient evidence at trial to sustain the conviction."

 

While a service member cannot count on a spouse's consent to defeat an adultery charge, it could be beaten by showing the sexual affair that grew out of the open marriage was not open or notorious. In the 2012 case U.S. v. Gemayel A. Jones, the U.S. Army Court of Criminal Appeals noted that "although open and notorious conduct may be service discrediting, wholly private conduct is not generally service discrediting."

 

In that case, the court set aside an adultery specification, finding that the adulterous activities between Jones, an Army specialist, and another junior enlisted soldier who was not his wife, did not have "a divisive or detrimental impact on their units" and there was insufficient evidence showing their relationship was open or notorious. ...

Petition to the American Law Institute - Consent should be a Defense for BDSM activities

on Wednesday, 15 July 2015. Hits 396

Consent should be a Defense for BDSM activities

 

We need your help! Please sign the ALI Petition to reclassify BDSM prosecutions as “sexual contact” instead of criminal assault. It’s all about consent, and the law should reflect that.

 

Sign here!

 

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.

 

Sign here!

 

Background info on the ALI Petition

 

 

Celebrate Consent Month in September!

on Wednesday, 15 July 2015. Hits 305

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.

 

Go to ConsentMonth.com to see ideas on how your group can celebrate Consent Month. Get free swag to give away at your event like “Got Consent?” ribbons and bracelets.

 

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!

"Sexual fetish research shows there are few limits to erotic desire"

on Tuesday, 14 July 2015. Hits 349

Shoes, catheters, even pacemakers and dacryphilia: academics have made it their duty to study the ever-expanding catalogue of things that turn people on

The Guardian

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. ...

"'Can I put my hand there?': New York law changes the rules of the college hook-up"

on Monday, 13 July 2015. Hits 1422

Syracuse.com

By Marnie Eisenstadt

What if you had to ask if it was okay

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 groups: Pride sponsors are ‘sadomasochistic’ and ‘perverted’"

on Saturday, 11 July 2015. Hits 334

Pink News

by Joe Williams

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 case for monogamy"

on Friday, 10 July 2015. Hits 382

The Economist

BY STEPHEN MACEDO

...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.

"Is gay marriage paving the way for legal polygamy?"

on Friday, 03 July 2015. Hits 403

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. ...

Latest Reader Comments

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    30. August, 2015 |

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