Get Your Law (Out Of / Into) The Bedroom

There was once a time when cries were heard about getting criminal laws out of our bedrooms. Crimes such as “unnatural sex,” were common. Interracial sex violated pervasive anti-miscegenation laws.  And then people figured out they didn’t want the government telling them how to behave in the privacy of their bedrooms, and our Puritan crimes fell away.

But like all perverse pendulums, it’s swinging back.  Government, get back in the bedroom and do something.

In the New York Times, Philosophy and Gender Studies professor Laurie Shrage writes about the wrongfulness of requiring individuals with HIV to disclose their condition to their sex partners.

H.I.V. disclosure laws give too little weight to the interests and rights of those who are H.I.V.-positive, while overvaluing and overestimating the benefits of transparency for society.  By repealing these laws, we move in the direction of adopting more just and effective policies for combating the H.I.V. epidemic, while protecting the most fundamental human rights.

“Wait,” you say. “She’s calling for the repeal of H.I.V. disclosure laws. You got it backwards.”  Well, that’s true, but then she also writes:

Why do disclosure requirements for sex partners focus only on the harms of acquiring H.I.V. or another sexually transmitted disease, but ignore other kinds of harm, such as the economic or psychological injuries caused by a lack of transparency?  Should we be able to bring charges against former sexual partners who failed to disclose their marital status, sex offender status, fertility status, or assigned gender?  To respect a partner’s moral right to sexual autonomy, we probably should disclose these kinds of facts, but when should such moral requirements be translated into legal ones?

Failures of disclosure in sexual transactions can cause serious emotional trauma, reputational damage (to women, mostly), unwanted pregnancies, as well as the transmission of disease.  There is no good reason to limit the moral and legal transparency requirements for sexual interactions to H.I.V. disclosure.

There’s the rub. The H.I.V. disclosure laws arose at a time of a moral and health panic, when AIDS meant certain death, and sex with an H.I.V. positive person was a death sentence.  Not that it doesn’t remain a serious and terrible health issue, but it’s no longer a guaranteed grave. Yet, the laws remain intact, as do crimes against nature in some backward states.

But the comparison between a killer disease and “the moral and legal transparency requirements” is one that is happening already, provided its morality from a singular perspective.  So what if it contrasts death with “emotional trauma”?  Don’t feelings matter just as much as death?

The moral imperative once meant that black men better keep their hands off white women or be prepared to hang.  It’s now being urged to apply to all men. Well, at least it isn’t based on racial prejudice anymore, right?

At Occidental College in Los Angeles, a young man has been expelled for the rape, “even after police acquitted him.”*

The student, identified only as “John Doe,” had sex with his accuser on September 8th, 2013, according to details of the case obtained by the Foundation for Individual Rights in Education. Both Doe and his accuser had been drinking. By several accounts, the sex was consensual. The accuser sent Doe a text message beforehand asking him if he had a condom. She also texted a friend and clearly announced her intention to have sex with Doe.

After that night, the accuser spoke with several Occidental employees, including Danielle Dirks, an assistant professor of sociology. Dirks told the accuser that Doe “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports team], and was ‘from a good family.’”

A week later, the accuser filed a sexual assault report against Doe.

On the bright side, the expelled rapist remains unnamed, unlike his counterpart at Duke.  That’s where the bright side ends.  There appears to be little question but that the sex was consensual, at least if one defines consensual as two individuals who affirmatively decided to engage in intercourse.

But then, after the sex was done, something happened. A sociology professor explained to the female that he had rapist written all over him. High GPA. Valedictorian. Sports. Good family. A guy can’t get any worse than that.  But didn’t she, you know, want to do it as well?

[T]he college hired attorney Marilou Mirkovich to investigate the matter. Mirkovich concluded that the female student did indeed consent to sex. However, since she was intoxicated, her consent was invalid, according to Mirkovich.

And so Doe gets the boot, that sick Valedictorian rapist from a good family.

The push to change prevailing attitudes is strong, with no less a moral figure than the president behind the eradication of sex and reason on campus.  There is an epidemic, we’re told, though we’ll get around to finding it later.  For now, it’s enough that we know it, we just know it.  Anecdotes of vagaries are more than sufficient. Don’t you believe them?

But as prevailing attitudes change, so too do the consequences and the protections.  Much as the issues abound with sex offender registries destroying lives of people who aren’t sex offenders in anyone’s imagination, the defining down of bedroom crimes not only puts all young men at risk of buyer’s remorse with extreme prejudice, but gives rise to an expectation that they are undeserving of a fair opportunity to challenge and defend themselves from accusations. It’s a double whammy.

And it’s happening. On many fronts. And sadly for people who share a progressive concern with such issues as free speech, overcriminalization and the evisceration of due process, there is an internal conflict of moral causes, and these “old school” concerns are expected to give way to the heart-rending emotional traumas suffered by women.

Maybe if Occidental’s John Doe had H.I.V., someone other than FIRE might give a damn about his being expelled as a rapist, with all the related damage he’ll endure.  But consensual sex with a Valedictorian? What else could he expect?

*  Sorry for inclusion of the quote, but it was a line in the Reason story that I can’t ignore.  Police do not acquit. Someone should have informed the author, Robby Soave, so that the line would be removed. It pains me greatly to see it there, and I would be remiss not to point this out.

H/T Radley Balko

17 comments on “Get Your Law (Out Of / Into) The Bedroom

  1. Matt B

    Does anyone else notice that the same profile probably applies to prospective politicians, doctors, lawyers, and college professors? Oh wait, professors don’t play sports.

  2. Bruce Coulson

    Sex is far too dangerous for college students. Campuses should simply make it illegal for students to have sex, and expel both offenders.

  3. John Barleycorn

    Hey now esteemed one, the author has a BA in English and European History. I think he knows what acquit means.

    Perhaps the “pained” quote is the sleeper jackpot of the article and if it’s not the police doing the acquitting or convicting, why not the deans committee on libations, lube, and sexual latitudes? Or the lawyers who draft executive branch legislative signing statements?

    Who truly decides in practical terms guilt and innocence these days in the minds eye of the Me generation anyway?

    One would think an investigative Journalist Fellow at the Goldwater institute and a Charles G. Koch Summer Fellow at Reason Magazine would have such notions flogged out of him or her in draconian and corporal fashion but then again the world is as the youth perceive her.

    Some Goldwater era tunes omitted for brevity and I hope you know it pains me so to do so.

  4. TM

    So wonderful to see that police are doing the acquitting now. Prosecutors, Defense Attorneys, and the Judges can all take a well-deserved day off.

    As in the story above, if two college kids get drunk and decide to knock boots, and she is later deemed to be too drunk to have properly consented, did he not also lack the ability to consent? If there is the idea that somehow only women are helpless enough to lack the mental capacity to consent after a few drinks, what happens when two girls have a few drinks together before getting busy? The idea that two people are simultaneously raping each other seems impossible. Where do we go from here?

    1. SHG Post author

      In the course of some good points, you’ve made one dubious leap: who said they were “too drunk”? Therein lies one of the problems (parity, as you note, being another), there being no definition or line between having an alcoholic beverage and, the next day, deciding you were too drunk to consent.

      There is no reason why two people couldn’t simultaneously rape each other, if having a few drinks is sufficient to negate consent. And yet, only one gets punished. Go figure.

      1. TM

        Assuming we have established a baseline for what is “too drunk” to consent, and both parties were in fact too drunk, whatever that may be – could you ever reasonably foresee a prosecutor filing charges against both parties? Or will it always be one of “pick the most offending party, and only charge them” as is often the case in domestic battery cases, where the two fight, and the one with fewer bruises or scratches loses?

        1. SHG Post author

          … could you ever reasonably foresee a prosecutor filing charges against both parties?

          Of course not. Nor will it be “pick the most offending party.” The one who cries rape first is the victim.

          1. delurking

            I don’t know. Look at all of the teens sexting each other who are both prosecuted under child porn laws.

  5. Nigel Declan

    In law school, I remember the majority of women in Family Law class rejecting the feminist law prof’s suggestion that women should always be able to repudiate pre-marital agreements, which the female students felt undermined the ability of women to consent to contract and, as such, infantalized them. Is there a possibility that, at some point in the future, a similar reaction might arise in opposition to these odious “rape” policies, on the grounds that saying that all men who have consensual sex with a woman who is even mildly intoxicated or who engage in “sexual activity” with clear implicit-but-not-explicit consent are rapists, essentially undermines women’s ability to decide how and with whom they may engage in sexual activity?

    1. SHG Post author

      It would not only be in their enlightened self-interest to do so, but would be far more consistent with the expectation of equality. These policies similarly infantilize women, and reduce them to incompetent, incapable, irresponsible special little snowflakes.

      Some may enjoy the benefits of irresponsibility, but I would suspect intelligent, capable women would reject them.

  6. John Neff

    The nutty thing about this issue is that it is a damage control problem for the administrators of a university and they seem to be the ones that are doing most of the damage.

    “We don’t do damage control.”

    Yes I noticed.

  7. John Barleycorn

    Guess, who I get to call a “rapist” at breakfast tomorrow?

    Think I should wear a helmet? Or do you think the bath robe will offer sufficient protection?

  8. Anonsters

    “But like all perverse pendulums, it’s swinging back.”

    I may or may not have read that as “like all perverse pudenda.”

    Carry on.

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