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. ...
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.”
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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.” ...
To understand why sex-forward couples therapists may still be considered renegades in the era of shows like “Girls” and “Transparent,” it may help to know that the concept of couples therapy is only slightly older than the Sexual Revolution. It was pushed to the fore in the early 1960s by Don D. Jackson, Virginia Satir and Jay Haley at the Mental Research Institute in Palo Alto, Calif., and Murray Bowen at Georgetown University Medical Center.
Sex therapy, invented by Masters & Johnson, evolved separately — and neither William Masters nor Virginia Johnson was a couples therapist or mental-health provider. Today, there is only one certification program for sex therapists, the American Association of Sexuality Educators, Counselors and Therapists, which means aspiring sex therapists may find access to courses and supervisors a challenge.
And though the association requires its certified sex therapists to be licensed social workers or psychologists first, couples therapists are not required to have any training in sex. Ms. Perel, for example, said she received exactly one hour of education on sex in her psychotherapy training, which led her to become certified in sex therapy in 2010, more than two decades later.
Dr. Nichols, 68, a psychologist and sex therapist, received zero hours of coursework in sex as a clinical psychology student. She went on to found the Institute for Personal Growth in Highland Park, N.J., in 1983, then one of few mental-health centers for gays and lesbians. Today, the institute, which added centers in Jersey City and Freehold, also counsels transgender people, but half of the clients are what Dr. Nichols calls “mainstream.”
Because her practice is diverse, she often finds herself looking to one group to help her with another. Her perspective, she said, is “G.G.G.,” which comes not from the annals of Freud but from a 2006 column by the Seattle-based syndicated sex columnist Dan Savage. It means a person should strive to be good in bed, giving to the partner and game for anything — within reason.
Dr. Nichols says kinky couples have the best sex of any long-term couples she sees. Because of this, she finds herself “selling” their principles to vanilla (nonkinky) heterosexuals.
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Angela Martin 47 minutes ago
Everything suggested in this article I enjoy, and most of my relationships are rife with the same challenges faced by Dr. Iasenza patients. ...
Cynthia Williams 47 minutes ago
So, make couples therapy more macho, more sexy, a bit more like an action movie? That's the solution?This latest jazzy trend is just a...
DogsRBFF 47 minutes ago
I am in a long term relationship but not for a long time so take my opinion with great grain of salt!It is almost impossible for anyone to...
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“Kinky couples plan sex,” she said, “and simmer for days in advance. They emphasize quality of encounter over frequency of encounters. They practice variety and exploration. They don’t judge a partner’s desires. They discuss and negotiate sexual acts, and they make a clear demarcation between ‘normal’ couple zone and ‘sex zone,’ allowing them to be totally immersed in an erotic space.”
One of the thornier issues affecting modern couples (kinky or not) is Internet pornography.
Dr. Klein, 65, a marriage and family therapist and sex therapist in Palo Alto, questions the existence of pornography addiction and says no one has the right to a pornography-free home without consulting his or her mate.
“Many couples haven’t come to terms with the question, ‘Is it O.K. if my husband or wife masturbates?’ ” he said. “If you haven’t come to terms with that, or with the fact that most adults have sexual fantasies, then how can you have a productive, collaborative conversation about pornography? The country is flooded with high-quality free porn, and the problem is that people are anxious and secretive because they’re getting the message, ‘If you watch that stuff, I’ll kill you.’ ”
He takes a more tolerant approach: “I say to the couple, ‘Let’s talk seriously about how come two people who love and like each other don’t have sex any more.’ ”
Not surprisingly, Dr. Klein’s approach has detractors. Sue Johnson, 58, the developer of Emotionally Focused Therapy and a clinical psychologist in Ottawa, specializing in couples, said that if pornography “takes over your life, it is going to wreck your relationship, just like any other addiction.”
As for infidelity, she said, “the idea that an affair is a solution to a lack of engagement and connection with your partner, that’s the craziest solution I’ve ever heard.”
Dr. Johnson’s program, as well as other couples therapist certification programs like Imago, emphasize safety, loyalty and attachment as the foundations of intimacy. (The work is about strengthening underlying bonds, not hoisting up the bondage.) ...