Under current North Carolina law, women cannot withdraw their consent after beginning to have sexual intercourse with a partner or partners.

In a 1979 ruling, the North Carolina Supreme Court held that “if the actual penetration is accomplished with the woman’s consent, the accused is not guilty of rape, although he may be guilty of another crime because of his subsequent actions.” In other words, if a woman begins having sex with someone and decides that she wants to stop, any action after that woman stops consenting is not considered rape under North Carolina law.

Per the 1979 ruling, consent can only be withdrawn, but not once an instance of sexual activity is ongoing. This has affected survivors who have tried to have their alleged rapists charged with rape but were unable to do so because of the court’s ruling. Many states adhere to similar legal principles as those reflected in North Carolina law.

North Carolina State Senator Jeff Jackson introduced a bill in March to the North Carolina General Assembly to address that legal loophole. If passed, the bill would “provide that a person who continues to engage in intercourse after consent is withdrawn is deemed to have committed the act of intercourse by force and against the will of the other person,” regardless of whether the parties had had sex previously or the situation in question was their first encounter.

While well-meaning, the bill does have its fair share of shortcomings. Although the bill is meant to correct the current law’s faults in regard to rape and women’s ability to consent, the bill is narrowly tailored to vaginal intercourse. The bill makes no mention of other forms of intercourse or people who do not have vaginas.

The bill also outlines that “the withdrawal of consent must be clearly communicated in a way that a reasonable person would understand to constitute withdrawal of consent.” This idea still puts the responsibility on the person withdrawing consent, whereas consent should be a continuous conversation among all people involved. After all, consent is not the absence of a “no,” but rather a clear, ongoing, mutual, and uncoerced “yes.”

It is unclear yet whether the bill has any hope of passing. Jackson failed to pass a similar bill last legislative session, and the current bill is still stuck in North Carolina’s Senate’s Rules Committee. However, the bill could have the potential to address some very real issues with North Carolina’s rape laws and bring justice to any future survivors of rape.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

The post Women Unable to Withdraw Consent Under Archaic North Carolina Law appeared first on Law Street.

It was billed as the trial of the century–Bill Cosby, a national treasure and pioneer for black Americans, on trial for sexual assault. Most people expected a guilty verdict, convinced that Cosby was overwhelmingly guilty of sexually assaulting former Temple University basketball staffer Andrea Constand. But in the end, there was no verdict at all.

After a week of deliberations, the jury could not come to a unanimous verdict and the judge was forced to declare a mistrial. Montgomery County District Attorney Kevin R. Steele immediately vowed to retry Cosby, but the lack of verdict still left some legal experts surprised. Here are several key factors that could have led to a hung jury.

Andrea Constand’s Credibility

Cosby’s defense team, led by Brian J. McMonagle, argued that Constand was not a viable witness due to several inconsistencies in her statements made to police. Philadelphia defense lawyer Alan J. Tauber analyzed the case and noted several highly contradictory statements in Constand’s 2005 police statement. At the time, Constand claimed that she had never been alone with Cosby before the assault, she denied having contact afterwards, and she said the assault occurred in March of 2004. Tauber called those statements “demonstrably false“–the alleged assault actually occurred in January of 2004 and she called him over 50 times afterwards–and said they likely swayed the jury.

While Constand’s conflicting testimony doesn’t mean that she is a liar, it did allow for the defense to poke holes in her credibility. Therefore, a handful of jurors may not have felt comfortable convicting Cosby based off her testimony.

Trouble With Defining Consent

This case was never about whether or not the two ever had sexual relations with one another. Cosby’s defense was that he’d had consensual sex with Constand in January 2004. He also admitted to giving her pills before they had sex, but said they were Benadryl, not Quaaludes. However, no forensics, no toxicology report, and no physical evidence of any kind were presented in the trial to corroborate either story. But since many of the key facts in the case are undisputed, Above the Law argues that it’s not a case of “he said, she said.” The real question, it contends, is “what defines consent?”

Jurors in the case clearly grappled with determining whether or not Constand consented to the sexual interaction. They even asked the court to define “reasonable doubt” and clarify what “without her knowledge” means in reference to one of the counts. Some jurors may have believed that the encounter was consensual since Constand took the pills voluntarily. The defense also argued that Cosby assumed that he had achieved “mutually informed consent.”

Lack of Other Accusers

A total of 60 women have accused Cosby of sexually assaulting them, but jurors were only allowed to hear from one other accuser during the trial. The prosecution wanted 13 accusers to testify at trial, but the judge granted only one, a woman who accused Cosby of drugging and assaulting her in 1996.

It could be more advantageous for prosecutors to appeal to the judge to allow the thirteen women to testify, rather than go straight to a retrial. The additional testimony could potentially help erase reasonable doubt in the eyes of the jury and trigger a different strategy from the defense.

James Levinson

James Levinson is an Editorial intern at Law Street Media and a native of the greater New York City Region. He is currently a rising junior at George Washington University where he is pursuing a B.A in Political Communications and Economics. Contact James at staff@LawStreetMedia.com

The post Bill Cosby Mistrial: What Kept the Jury Deadlocked? appeared first on Law Street.

It’s Trump’s first week, but the protests haven’t stopped quite yet. For example, actor Shia LaBeouf has launched a four-year-long livestream art project called “He Will Not Divide Us.” It involves a camera outside of New York’s Museum of the Moving Image and its first featured guest was Jaden Smith. Check it out here.

Welcome to RantCrush Top 5, where we take you through today’s top five controversial stories in the world of law and policy. Who’s ranting and raving right now? Check it out below:

Trump’s Team Hired Actors to Attend His First Campaign Speech

Way before President Donald Trump won the election, back when he publicly announced his candidacy in June 2015, his campaign team indirectly hired actors to be in the audience. Members of Trump’s team were accused of doing so at the time, but denied it—and they are right, in a sense. They didn’t hire the actors directly, but they worked with a contracting firm, which then subcontracted a talent agency to make sure that some actors came to cheer for the new candidate. A complaint that the American Democracy Legal Fund filed in March was made public last week and confirms the allegations. That organization supported Hillary Clinton and is alleging that Trump’s campaign team didn’t pay the agencies appropriately.

Trump hired a firm to provide actors to cheer during his 2015 campaign announcement then didn’t pay them for months https://t.co/7Ktaj6Jiec

— Liam Stack (@liamstack) January 22, 2017

A journalist from the Center for Public Integrity found that the Trump campaign also failed to pay the contracting firm until a month after the company had filed a complaint, and four months after it was originally hired. In the end, the Federal Election Commission ruled that the Trump campaign hadn’t done anything wrong. But if nothing else, it’s an embarrassing revelation for a team that only days ago claimed to have had the largest inauguration audience in history, despite photo and video evidence to the contrary.

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

The post RantCrush Top 5: January 24, 2017 appeared first on Law Street.

It’s Monday and Donald Trump is officially our president! In other words, this past week was pretty hectic to say the least. So ICYMI, check out some of our top trending stories from last week below!

Rinat Dray: NYC Bar Association Supports Woman Who Sued Hospital for Forced C-Section

In 2011, Rinat Dray went to Staten Island Hospital, already in labor. She had already had two babies through C-sections and had her mind set on giving birth naturally. But she said the doctor immediately started persuading her to have a C-section. In 2014 she sued the hospital for malpractice, among other claims, saying that the doctors did not care about her judgment as a mother, but pressured and threatened her.

Girl Scouts Face Backlash for Decision to March in Trump’s Inaugural Parade

The Girl Scouts of the USA have a controversial weekend ahead of them–it has been announced that the organization will be attending and marching in President-elect Donald Trump’s inaugural parade. And given Trump’s pretty abysmal record on women’s rights, a lot of people are really mad at the organization for making that call.

Man Found Guilty of Rape After Removing Condom During Sex

Consent is essential before engaging in any kind of sexual activity. But as one case in Switzerland makes very clear, consent goes well beyond simply saying yes or no before having sex. In a landmark decision Monday, the Criminal Court in Lausanne, Switzerland convicted an unnamed man of rape after he secretly removed a condom during sex with his partner, without her knowledge or consent.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post ICYMI: Best of the Week appeared first on Law Street.

It is hard to believe that in 2016 in a European country, a government could propose a new law that would make child marriage legal, and also protect rapists from being punished by the law as long as they marry their victim. But that is exactly what is happening in Turkey. The new bill was approved on Thursday and is scheduled to undergo a final vote on Tuesday. If it passes, it will take away the punishment for sexual assault if there is no force or if the victim and perpetrator are married. This would include girls under the age of 18. So how could sexual assault without force be criminalized, and how could sexual violence in marriages be punished? Put simply: they likely couldn’t be.

WTF Turkey with this project of law to decriminalize rape if it ends in a marriage??? “rape legalization”, that’s the true meaning of it…

— mandubianhotep (@mandubian) November 21, 2016

If a man rapes a girl, he can escape punishment by agreeing to rape her for the rest of her life. #Islam #Turkey https://t.co/CrLGhzXM46

— Anne Marie Waters (@AMDWaters) November 19, 2016

Over the weekend, thousands of people took to the streets to protest the proposed law, carrying signs that read “Punish the rapist, not the child,” and “Rape cannot be pardoned.” According to reports even the daughter of Turkey’s President, whose party introduced the bill, protested it. “Pardoning the crime of sexual assault, or dropping it due to prescription, is out of the question. People who commit sexual assault and rape crimes cannot be cleared,” one protester said to the AP.

The government claims it didn’t create the bill to pardon rapists, but to solve some legal challenges in connection with the widespread custom of child marriage. According to Prime Minister Binali Yildrim, it would release men who were imprisoned after marrying underage girls in religious ceremonies. But critics say the law would pardon rape and basically take away the rights of women and children. Now some United Nations agencies, like UNICEF, are urging Turkey to not go ahead with the law, as it would work against the country’s ability to “combat sexual abuse and child marriages.” A spokesperson said that UNICEF is “deeply concerned,” and that “these abject forms of violence against children are crimes which should be punished as such.”

Motion to ‘protect child marriage’ in #Turkey draws criticism and claims of pardoning rape. #EndChildMarriage https://t.co/FIfDpo2Fkr pic.twitter.com/KFUNI04FY8

— Edward Herbert (@ed_herbert) November 21, 2016

Turkey has one of the highest rates of child marriage in Europe, especially in more rural areas. The changes would apply to cases between 2005 and November 16 of this year.

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

The post Public Uproar: Turkey Moves Ahead With Child Marriage Law appeared first on Law Street.

Throughout most of our history, rape was a property crime.

Today we do not, in the modern United States at least, think of a woman’s sexuality as a financial asset. But that is a recent phenomenon. For most of our history, rape was not treated the same way as other violent assaults because it wasn’t just a violent assault, it was also a crime against property.

You can see this view–of a woman’s sexuality belonging to her father and later her husband–in laws concerning rape and sexual assault. It was even possible for a father to sue a man who had consensual sex with his daughter because he had lost the value of his daughter. Based on this view, value is lost in terms of her work if she became pregnant and was no longer able to earn wages, or in terms of a future wife for someone else because of this stain on her character. Men could not be held accountable for raping their wives because a wife was a man’s property and consent to sex–at any time of his choosing–was part of the arrangement.

Lest you think that these laws are ancient examples of a culture that no longer bears relation to our current policies on rape, spousal rape was not made illegal in all fifty states until 1993, where it still may carry a less severe sentence than other rape offenses. The tort of seduction was technically on the books in North Carolina in 2003.

This context is important given our current cultural attitudes toward sexual assault. To understand this culture and how it can be amended, we need to look more deeply at the historical understandings of rape and consent.

Force Means No

The framework for defining rape underpins our understanding of who is required to prove consent or non-consent. The Hebrew Scriptures, which established longstanding cultural norms that helped form a basis for what was morally and legally acceptable in early America, make a distinction between a woman who was raped within a city and one who was raped outside of the city limits. The first woman was stoned to death and the second considered blameless (assuming she was a virgin). This distinction is based on the idea that it was the woman’s responsibility to cry out for help and show that she was non-consenting. A woman who was raped in the city obviously had not screamed because if she had someone would have come to her rescue and stopped the rape. The woman outside the city had no one to rescue her so she could not be blamed for being victimized.

This brutal logic, which is completely inconsistent with how we know some victims of rape react to an attack, was continued in the American legal system when our laws on rape were formulated. Rape was defined as a having a male perpetrator and a female victim and involving sexual penetration and a lack of consent. But it was again the woman’s responsibility to prove that she had not consented and the way that this was demonstrated was through her resistance. She was only actually raped if she had attempted to fight off her attacker. Different jurisdictions required different levels of force to show a true lack of consent. For example, fighting off an assailant to your utmost ability or even up to the point where the choice was either to submit to being raped or to being killed. Indeed, the cultural significance of chastity as a virtue that the female was expected to guard was so profound that many female Christian saints are saints at least in part because they chose to die rather than be raped or be a bride to anyone but Christ.

Potential canonization aside, it was consistently the responsibility of the woman alleging that she was the victim of a rape to prove that she had fought off her attacker in order to show that she had not consented. If she could not show that she had sufficiently resisted, she was deemed to not have been raped. Her chastity was someone else’s property, either her father’s or her husband’s/future husband’s, so it was always understood that someone, other than her, had the right to her sexuality. The assailant had assumed that he had the right to use her sexually and was only a rapist if she acted in such a way that a reasonable man would have known that she did not belong to him. Her failure to communicate that fact, that she was the property of some other man, was a sign that she had in fact consented. Therefore the rape was not his moral failing in stealing another man’s property but her moral failing in not protecting that property from being stolen.

Culture Wars

We can see the effects of this ideology in how we treat rape victims today. Although we don’t necessarily require evidence of forceful resistance, it is considered helpful in prosecuting a rape case. Rape shield laws may have eliminated the most egregious examples of slut-shaming victims, but an innocent or even virginal victim is certainly what the prosecution could hope for if they were trying to design their most favorable case. One of the first questions that will be asked of the victim is “did you say no?” In other words “what did YOU do to prevent this from happening to you?” The burden is still often legally and almost always culturally on the victim to show that they did not consent.

There is an alternative approach that has been gaining traction on college campuses and elsewhere known as the concept of “affirmative consent.” Take a look at the video below, which elucidates the differences between the “no versus no” approach compared to affirmative consent, which is often described as “yes means yes.”

In this video, Susan Patton and Rush Limbaugh both represent examples of rape culture. The contrast between the views of Savannah Badlich, the advocate of affirmative consent, and Patton, who is against the idea, could not be starker. To Badlich, consent is an integral part of what makes sex, sex. If there isn’t consent then whatever happened to you, whether most people would have enjoyed it or indeed whether or not you orgasmed, was rape. It is your consent that is the foundation of a healthy sexual experience, not the types of physical actions involved. In contrast, Patton expressed the view that good sex is good sex and consent seems to not play a role in whether it was good sex, or even whether it should be defined as sex at all. The only thing that could indicate if something is an assault versus a sexual encounter is whatever physical evidence exists, because otherwise, the distinction is based only on the assertions of each individual. Again we are back to evidence of force.

What is “Rape Culture”?

Rape culture refers to a culture in which sexuality and violence are linked together and normalized. It perpetuates the idea that male sexuality is based on the use of violence against women to subdue them to take a sexual experience, as well as the idea that female sexuality is the effort to resist or invite male sexuality under certain circumstances. It overgeneralizes gender roles in sexuality, demeans men by promoting their only healthy sexuality as predatory, and also demeans women by considering them objects without any positive sexuality at all.

According to this school of thought, the “no means no” paradigm fits in perfectly with rape culture because it paints men as being predators who are constantly looking for a weak member of the herd to take advantage of sexually, while also teaching women that they need to be better than the rest of the herd at fending off attacks, by clearly saying no, to survive. If they can’t do that, because they were drinking or not wearing proper clothing, then the attack was their fault.

“Yes Means Yes”

Affirmative consent works differently. Instead of assuming that you can touch someone until they prove otherwise, an affirmative consent culture assumes that you may not touch someone until you are invited to do so. This would be a shocking idea to some who assume that gamesmanship and predation are the cornerstones of male sexuality and the perks of power, but it works out better for the majority of men and women, who would prefer and who should demand equality in sex.

This video gives a brief highlight of some of the issues that are brought up when affirmative consent is discussed and the difficulties that can still arise even with affirmative consent as a model.

Evaluating Criticism of Affirmative Consent

The arguments are important so let’s unpack some of the key ones in more detail. The first objection, expressed in both videos, is how exactly do you show consent? Whenever the affirmative consent approach comes up, one of the first arguments is that it is unenforceable because no one is going to stop sexual activity to get written consent, which is the only way to really prove that a person consented. We still end up in a “he said, she said” situation, which is exactly where we are now, or a world where the government is printing out sex contracts.

The idea that affirmative consent will by necessity lead to written contracts for sex is a logical fallacy that opponents to affirmative consent use to make the proposition seem ridiculous. Currently, we require the victim to prove non-consent. Often the victim is asked if they gave a verbal no or if they said they did not want the contact. The victim is never asked: did you put the fact that you didn’t want to be touched in writing and have your assailant read it? The idea that a written explanation of non-consent would be the only way we would take it seriously is absurd, so it would be equally absurd to assume that requiring proof of consent would necessitate written documentation. Advocates for affirmative consent don’t want sex contracts.

In addition, even under our current framework we accept a variety of pieces of evidence from the prosecution to show that the victim did not consent. A clear “no” is obviously the strongest kind of evidence, just as under an affirmative consent framework an enthusiastic verbal “yes” would be the best evidence, but that is just what the best evidence is. That is certainly not the only kind of evidence available. Courts already look at the entire context surrounding the incident to try to determine consent. The process would be virtually the same under an affirmative consent model. The only difference would be that the burden would be on the defendant to show that they believed they had obtained consent based on the context of the encounter instead of placing the burden on the victim to show that, although they didn’t say “no,” they had expressed non-verbally that they were unwilling to participate.

The shift in the burden of proof is sometimes cited as a reason not to adopt an affirmative consent model. Critics argue that this affects the presumption that the accused is innocent until proven guilty. Which is, rightly, a cornerstone of our judicial system. If this model did, in fact, change that presumption then it wouldn’t be an appropriate answer to this problem. But it does not.

Take another crime as an example. A woman’s car is stolen. The police issue a BOLO on the car, find it, and bring the suspect in and sit him down. They ask him “did you have permission to take that car?” and he replies “Yes, officer, she gave me the keys!”

He is still presumed innocent and, as far as this brief hypothetical tells us, hasn’t had his rights violated. It looks as though he is going to get a fair trial at this point. That trial may still devolve into another he said, she said situation. She may allege that she didn’t give him the keys but merely left them on the kitchen table. At that point, it will be up to the jury to decide who they believe, but that would have been the case in any event. He is presenting her giving the keys to him as one of the facts to show his innocence.

If a woman’s car is stolen we don’t question her about how many miles are on the odometer. We don’t ask if she wore a seatbelt the last time she drove it. We don’t care if she had been drinking because her alcohol consumption doesn’t negate the fact that she was a victim of a crime. We certainly wouldn’t force her to prove that she didn’t give the thief the keys.

That is how affirmative consent works. It wouldn’t require a written contract or even necessarily a verbal assertion. Context would always matter and the cases would still often become two competing stories about what the context meant. And it doesn’t mean that we are assuming that person is guilty before they have the chance to show that they did, in fact, get that consent. It just means that we are placing the burden of proving that consent was obtained on the party claiming that consent had been obtained.

Conclusion

There is no other category of crime where we ask the victim to show that they didn’t want to be the victim of that crime. A man who is stabbed in a bar fight, regardless of whether he was drunk or belligerent, isn’t asked to prove that he didn’t want a knife wound.

We need to change our cultural framework of rape and consent. When we are working under an affirmative consent framework what we are doing is changing the first question. Currently, our first question is for the victim: did you say no? Under an affirmative consent model our first question is for the suspect: did you get a yes?

Resources

Women Against Violence Against Women: What Is Rape Culture? 

Vice: A Brief And Depressing History of Rape Laws

Women’s Law Project: Rape and Sexual Assault In the Legal System

Find Law: Is The Tort of Wrongful Seduction Still Viable? 

International Models Project On Women’s Rights: Law Reform Efforts: Rape and Sexual Assault In The United States of America

Catholic Company: The Virgin Martyrs As Models of Purity

Chicago Tribune: To Combat Sexual Assault, Colleges Say ‘Yes’ To Affirmative Consent

Think Progress: What Affirmative Consent Actually Means

SUNY: Definition of Affirmative Consent 

Washington Post: Why We Made ‘Yes Means Yes’ California Law

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Rape Culture and the Concept of Affirmative Consent appeared first on Law Street.

Sex under the influence is a complicated topic–one rife with questions of consent and the spread of STIs or unwanted pregnancy. Traditionally, that “influence” has been alcohol, but as the legalization of recreational marijuana becomes increasingly the norm in some states, will the same concerns extend to sex while stoned? New York University researchers recently set out to weigh the differences between stoned sex and drunk sex, and their results shed some light on that question.

The researchers, led by Joseph Palamar, PhD, MPH, an affiliate of NYU’s Center for Drug Use and HIV Research and an assistant professor of Population Health at NYU Langone Medical Center (NYULMC), studied 12 heterosexual men and 12 heterosexual women. They conducted in-depth interviews about their sexual experiences while under the two different influences.

The results? Both alcohol and weed lead to riskier sexual behavior overall. But, at the end of the day, drunk sex was riskier than stoned sex. Sex after consuming lots of booze was more likely to lead to negative feelings of regret, shame, and embarrassment afterwards. According to the Washington Post’s analysis of the study:

The most commonly reported feeling after sex on alcohol was regret. Both males and females commonly reported that regret, shame, and embarrassment were associated with alcohol use, but this was rarely reported for marijuana.

However, the study also acknowledged that those feelings may come from the situations in which alcohol and marijuana are likely to be consumed. Given the fact that marijuana is still illegal in most states, it’s more likely to be consumed in intimate settings; alcohol is often consumed at larger parties and in more social situations.

The study also found that sex under either influence led to some technical difficulties for both men and women–the study’s writeup stated: “marijuana use was linked to vaginal dryness and alcohol was commonly described as increasing the likelihood of impotence among males.”

Put simply, sex under the influence–alcohol or weed–has its risks. But drunk sex is riskier than stoned sex, an important distinction as recreational marijuana becomes more and more socially acceptable (and legal).

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post What’s Riskier: Drunk Sex or Stoned Sex? appeared first on Law Street.

Oklahoma has done it again, ladies.

Oklahoma law does not criminalize someone who forces an intoxicated or unconscious person to engage in oral sex.

A Tulsa County judge dismissed a case in November involving two high school students after a 17-year-old boy reportedly offered a ride home to a 16-year-old girl. She had been heavily drinking and court documents show that her BAC was at 0.34, which would constitute alcohol poisoning. She was taken back to her grandmother’s house where she was completely unconscious and taken to the hospital. She later woke up to sexual assault testing and the boy’s DNA was found on her body.

He was initially charged with forcible sodomy and first-degree rape.

The boy claimed their encounter was consensual, but the girl claimed that she had no memory of it happening.

According to the court, “Forcible sodomy cannot occur where a victim is so intoxicated as to be completely unconscious at the time of the sexual act of oral copulation.”

The case was appealed, but the appeals court affirmed that the state could not prosecute the boy for his actions.

“The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent,” Benjamin Fu, the Tulsa County district attorney leading the case, told The Guardian. “I don’t believe that anybody, until that day, believed that the state of the law was that this kind of conduct was ambiguous, much less legal. And I don’t think the law was a loophole until the court decided it was.”

The defense attorney, Shannon McMurray, argued in the Oklahoma Watch that the court was right because intoxication cannot be substituted for force.

“There was absolutely no evidence of force or him doing anything to make this girl give him oral sex other than she was too intoxicated to consent” McMurray said.

This ruling has acted as a catalyst for the public to urge change to the law. Lawmakers as well are pushing to close this gap and make sure that this cannot be used in the future to dismiss a case.

One Oklahoma State Representative, Scott Biggs, R-Chickasha, said that he plans to amend the bill in order to include unconscious victims under the forcible sodomy law.

Oklahoma: it isnt rape if you’re drunk. So I can get drunk and rob people and it’ll be okay then? maybe steal a car?https://t.co/yM2YK4cW8z

— Lynsie Lee (@LynsieLee) April 28, 2016

WTF IS WRONG WITH OKLAHOMA???? OK court: oral sex is not rape if victim is unconscious from drinking https://t.co/AKf2vyKP7q#YesAllWomen

— Jeska Dzwigalski (@JeskaD) May 1, 2016

While the verdict shocked many, it wasn’t surprising to all.

“It’s not surprising, although unfortunate, that this is how it came down,” Rebecca O’Connor, the vice president for public policy of the Rape, Abuse and Incest National Network told The New York Times. “It’s also not unique to Oklahoma. This sort of gray area of law can lead to unfortunate consequences.”

Julia Bryant

Julia Bryant is an Editorial Senior Fellow at Law Street from Howard County, Maryland. She is a junior at the University of Maryland, College Park, pursuing a Bachelor’s degree in Journalism and Economics. You can contact Julia at JBryant@LawStreetMedia.com.

The post Oklahoma Court: It Isn’t Rape if She is Too Intoxicated appeared first on Law Street.

In a controversial ruling, Canadian radio host Jian Ghomeshi was found not guilty on multiple accounts of sexual assault and one count of choking based on the allegations of three women. In his judgment, Justice William B. Horkins cited “serious deficiencies in the evidence” that left reasonable doubt in the case.

Ghomeshi was the host of the popular radio show “Q,” but was fired from his position at the Canadian Broadcasting Corporation (CBC) last October after the network claimed to have seen evidence of him causing “physical injury” to a woman. Around the time of his dismissal, multiple women came forward to the Toronto Star with various allegations of violence and sexual harassment against Ghomeshi (there would end up being over 20 accusations total). This particular trial involved incidents occurring in 2002-2003 involving three women, two who chose to remain unidentified during the trial; the third was Canadian actress Lucy DeCoutere.

While it may hold true that there was not enough evidence to garner a conviction for Ghomeshi, the real outrage surrounding the acquittal seems to stem from the actual judgment released by Justice Horkins, which tore apart the testimonies of the alleged victims and addressed any inconsistencies in their recollections of the events as being “outright deception.” Horkins also claimed that the evidence provided included “questionable behaviour” by the witnesses.

Judge in Ghomeshi trial called witness’s behaviour “odd.” Yup! When you’ve been sexually assaulted, things can seem “odd” #IBelieveSurvivors

— DeAnne Smith (@DeAnne_Smith) March 24, 2016

The judge’s comments in #Ghomeshi case uphold that rape culture and victim-blaming is alive and well. #IBelieveSurvivors

— Janet Mock (@janetmock) March 24, 2016

Witness 1 shared rxn to #Ghomeshi verdict w/ @Chatelaine: “He called us all liars. This was an insult to women.” pic.twitter.com/levQxBF1TV

— Sarah Boesveld (@sarahboesveld) March 24, 2016

Further, Horkins hit upon the fact that witnesses failed to disclose information that he believed would be “significant” to the trial, such as the fact that DeCoutere engaged in multiple “kissing sessions” with Ghomeshi the night of the assault, and the fact that victims had engaged in “flirtatious” behavior with him. This response by the judge seemed to imply that this behavior by the witnesses were indications of consent on their part.

Ghomeshi himself was never put on the stand; however, after his firing by CBC he responded in a now-deleted Facebook post, indicating that his aggressive sexual behavior was consensual. He wrote:

Let me be the first to say that my tastes in the bedroom may not be palatable to some folks. They may be strange, enticing, weird, normal, or outright offensive to others. But that is my private life. That is my personal life. And no one, and certainly no employer, should have dominion over what people do consensually in their private life.

After the news of the verdict broke, protests broke out in front of the courtroom in Toronto, and people gathered to rally in support of the accusers. There were also calls by many for legal reform in sexual assault cases within the Canadian legal system. Ghomeshi’s fight is not completely over yet; he will be back on trial in June to face one of the other charges levied against him.

Actress Zoe Kazan also released a series of tweets yesterday, alleging that Ghomeshi had acted inappropriately towards her:

Before we went on air, he told me I was “just his type.” “Funny, sexy, just the right amount of damage,” he said (after talking abt 3 mins).

— zoe kazan (@zoeinthecities) March 24, 2016

Later he showed up @ party I was at & wdnt leave me alone. His unwanted attention made me feel like I’d “asked for it.” I felt dirty & sad.

— zoe kazan (@zoeinthecities) March 24, 2016

This behavior is insidious, but so is a culture that condones it, by turning a blind eye, or shaming the victim. We internalize these mores.

— zoe kazan (@zoeinthecities) March 24, 2016

Ghomeshi may have been set free by the Canadian legal system, but in the court of public opinion, it looks as if his reputation may be tarnished for good.

Mariam Jaffery

Mariam was an Executive Assistant at Law Street Media and a native of Northern Virginia. She has a B.A. in International Affairs with a minor in Business Administration from George Washington University. Contact Mariam at mjaffery@lawstreetmedia.com.

The post Jian Ghomeshi’s Acquittal Provokes Debates on Victim-Blaming and Consent appeared first on Law Street.

Let me preface this by saying I have nothing against people of the Christian faith. In fact, I know many truly decent, open-minded human beings who practice Christianity. What I do have a problem with is that subset of Christianity that uses religion as an excuse to encourage acts that violate basic human rights.

Take, for example, a writer for the website Biblical Gender Roles who goes by the name Larry Solomon (not his real name). In previous posts, he has said there is “no such thing” as marital rape because if a wife refuses sex with her husband it is “a disrespectful and unloving response… and there is no sin in you trying to initiate sex with your wife.”

He goes on to encourage husbands to have sex with their wives anyway, even if she flat-out refuses or does so “begrudgingly.”

Of course, he acknowledges that marital rape is not as pleasurable as consensual sex, and since the author wants the husbands to enjoy themselves anyway, he advises them to “focus your eyes on her body, not her face. Focus on the visual pleasure you receive from looking at her body and physical pleasure you receive from being inside your wife.”

Solomon explains that women just don’t want sex as much as men do, that sex is the primary way husbands feel close to their wives, and that if a wife denies her husband sex she is opening them both up to “temptation.” I assume what he means by “temptation” is extramarital sexual relations. So, he tells his readers, if your wife agrees to “fake it,” has sex begrudgingly, or just refuses, have sex with her anyway and ignore her face, because she’s probably giving you a look of betrayal.

What’s scary is that Larry Solomon, or whatever his real name is, isn’t the only person who thinks this way. He isn’t the only person who thinks that men have a God-given right of control over their wives or significant others. Somehow, it becomes the woman’s fault for not being “in the mood”; somehow it is her fault if her husband seeks companionship outside of their marriage. For example, the Duggar family came under fire recently because the oldest son had more than one sexual scandal in one year (if you need a refresher: it was revealed that he has previously molested two of his sisters AND had an Ashley Madison account while married). In response, the mother, Michelle, took to her blog to implore women to meet their husbands’ sexual needs even if they’re tired after a long day or “exhausted and pregnant.” She says that if you’re there for his physical needs, he’ll be there for your needs. So, essentially, fake it when you’re not in the mood for the health of your relationship.

Ladies, that’s bullshit. Marriage takes work, that is no secret. If one night you don’t feel like having sex, or your husband doesn’t feel like having sex, you don’t do it. Unless both parties agree to it, it’s not consensual, even in a marriage. If you’re refusing sex because of a deeper issue, such as a lack of communication or unresolved argument, clearly things need to be worked out emotionally before you and your significant other can get physical again and have it be pleasurable for BOTH of you. There is such a thing as marital rape, and there is no shame in saying “no.”

Marital rape is illegal in the U.S., but in several states, there is still language being used that allows spousal rape to go unpunished. According to the research in this Daily Beast article, a person can be legally drugged and sexually assaulted in some states if the perpetrator is the victim’s spouse. The existence of these caveats only adds to the rape culture already running rampant in the United States. To stop it, we have to keep sending out the message that “No Means No,” even in a marriage.

Learn More: Marital Rape in the U.S.: What are the Laws?

Morgan McMurray

Morgan McMurray is an editor and gender equality blogger based in Seattle, Washington. A 2013 graduate of Iowa State University, she has a Bachelor of Arts in English, Journalism, and International Studies. She spends her free time writing, reading, teaching dance classes, and binge-watching Netflix. Contact Morgan at staff@LawStreetMedia.com.

The post #INeedFeminism Because Sites Like “Biblical Gender Roles” Exist appeared first on Law Street.

Revenge porn is a real problem, especially in the age of the internet. But now, one of the go-to destinations for internet smut is taking action against revenge porn, by making it easier for victims to get the videos and photos taken down. While this big change by PornHub certainly won’t prevent all cases of revenge porn, it’s definitely a strong symbolic move.

Revenge porn can take a few forms, but the most traditional are videos or pictures in the possession of an individual’s former partner that are posted online or shared in an attempt to get “revenge” for some perceived wrongdoing, or even just embarrass the individual. The victims are usually, but certainly not always, female.

While PornHub has always had policies in place to get rid of any revenge porn that was posted or taken without an individual’s knowledge, the company just announced that that process will be streamlined with the introduction of a new form that will allow users to report abuses right away. Previously, the appeals process was done via email, but PornHub wants to cut through that “red tape” and also deter the posting of non-consensual content.

Corey Price, the PornHub Vice President said in a press release:

With nearly 60 million visitors to Pornhub daily, it’s imperative that we remain ahead of this perpetuating victimization of innocent individuals and continue to combat this illicit behavior. We will persist in enacting measures that we believe will strongly reinforce Pornhub’s stance against revenge porn. We are fully committed to the removal of this type of content from our site, in the pursuit of instilling a sense of safety and community that keeps our users’ minds at ease.

This certainly won’t lead to a complete removal of all revenge porn from PornHub’s site, much less the internet as a whole. Given the ease with which new videos can be uploaded, as well as the fact that the system to take it down relies on user participation, revenge porn will probably still make its appearances. There are also more things the company could be doing–according to Mary Anne Franks, who teaches law at the University of Miami and works as the Vice President of the Cyber Civil Rights Initiative–sites should be more proactive about making sure that illegal content doesn’t become publicly available in the first place. According to the Verge:

The deterrents she suggests seem easy to implement: a clearly displayed reminder that revenge porn is illegal in most US states, or a simple checkbox for users to verify that the materials they upload are being distributed with the full consent of all parties.

So it’s not perfect. But as a company that saw 18.5 billion visits in 2014 alone, PornHub is making a rather visible statement that revenge porn is wrong, and should not be tolerated.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post PornHub Takes a Stand Against Revenge Porn appeared first on Law Street.

Users looking to post a nude photo or video to Reddit will soon have to do something they’ve never done before–get consent!

Reddit is taking a stand against revenge porn and sexual exploitation by making revisions to its digital privacy guidelines that will become effective March 10. The user-curated news and social networking site is banning sexually explicit images or videos where those photographed or filmed haven’t given their permission. These changes come as a somewhat delayed response to Reddit’s major role in the massive iCloud hack of celebrity nude photos in August.

Yesterday morning Reddit executives addressed their mission to protect users’ digital privacy in a post writing:

Last year, we missed a chance to be a leader in social media when it comes to protecting your privacy — something we’ve cared deeply about since reddit’s inception. At our recent all hands company meeting, this was something that we all, as a company, decided we needed to address.

No matter who you are, if a photograph, video, or digital image of you in a state of nudity, sexual excitement, or engaged in any act of sexual conduct, is posted or linked to on reddit without your permission, it is prohibited on reddit. We also recognize that violent personalized images are a form of harassment that we do not tolerate and we will remove them when notified

The “missed chance” the post is referring to was when a subreddit called “TheFappening” was created to link to curate all of the criminally obtained images procured in the 2014 celebrity photo hack. Some of the celebrities targeted included Jennifer Lawrence, Kate Upton and Olympic gold medalist McKayla Maroney, whose images may have constituted child pornography since they were taken while she was reportedly underage. The subreddit garnered thousands of followers in just one day and stayed live until September 6 when it was banned by the site after being widely chastised.

The whole nude photos leak controversy definitely led to some backlash against Reddit, including this entertaining flowchart by New York Magazine:

Should we ban that subreddit? A flowchart by Reddit admins: http://t.co/RhS9wKEyI1 pic.twitter.com/Tz54dsWdr8

— New York Magazine (@NYMag) September 9, 2014

But all that’s changing. Now, if you feel like you have been a victim of involuntary pornography a new section added to Reddit’s privacy policy asks you to send an email to contact@reddit.com with a link to the image or video in question and they will “expedite its removal as quickly as possible.”

The real question is whether or not other social sharing sites will join Reddit in improving their digital privacy policies. Tumblr will be one of those sites to watch, as it was also used to distribute the controversial and illegal leaked nude photos. While the site nicely urges members to not upload sexually explicit content in its community guidelines, it essentially operates as a unofficial porn site in many ways–nude photos and videos are regularly and eagerly shared. Adopting a policy like the one Reddit is looking to implement would drastically change its microblogging platform and potentially anger users. Still a precedent needs to be made to protect both women and men from having their personal photos become public either unknowingly or unwillingly.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Reddit Finally Prohibits Revenge Porn appeared first on Law Street.

In most cases, the law grants people autonomy over their own bodies, including a constitutional right to consent to or refuse medical treatment; however, for teenagers, that right is curbed by their parents, who have the right to control medical procedures in most cases until that child turns eighteen. There has been a lot of news lately where teens are fighting back against their parents over medical treatments, procedures, and even appointments. Read on to learn more about this issue, including mental health, substance abuse, and physical problems.

Parent – Child Medical Care

Traditionally when a teenager, child, or infant goes for medical treatment, including routine check-ups, parents are welcome in the room. Many doctors’ offices allow the parent in, while some do so only if the child says the parent can come in. This is especially true in more sensitive appointments. In most cases, a child’s parents or guardians are the ones who know the most about the child.

According to the University of Washington School of Medicine:

Parents have the responsibility and authority to make medical decisions on behalf of their children. This includes the right to refuse or discontinue treatments, even those that may be life-sustaining. However, parental decision-making should be guided by the best interests of the child. Decisions that are clearly not in a child’s best interest can and should be challenged.

The concern that a parent could make a decision that isn’t in their child’s best interest has led to some cases where children and teenagers start to fight back against their parents when it comes to medical care.

What are age of consent laws?

Doctors of all kinds, from dentists to ophthalmologists, have grappled for years with age of consent when it comes to mature adolescents. In a 2013 Pediatrics article, the authors stated:

It is well understood in the medical community that adolescents’ aptitude to make rational, responsible decisions changes over time and that older teenagers and young adults have substantially similar cognitive capacities.

According to Doctor Will See You Now, this question of maturity, and the automatic assumption of parent’s rights, endures as the general background rule that will apply in the majority of court cases regarding treatment of teens. The site points out that most frequently, parents are “free to sort among alternatives and elect the course of treatment based on his or her assessment of the child’s best interests.” This rule applies to any patient below the age of majority, 18 in most states, although in a small number of states, such as Delaware (19), Mississippi (21), and Nebraska (19),  it is higher. In Arkansas, Nevada, Ohio, Utah, and Wisconsin the age of majority varies due to high school graduation dates. Some health insurance plans also have rules associated with their policies.

Those who are evaluated to have a maturity over their physical age, however, have been deemed “mature minors” in some court cases. That concept, as psychologically valid as it is, is cloudier when it comes to state laws, which vary widely in their “mature minor” stances, including the ages at which one becomes a “mature minor.” SeverFew U.S. courts have already defined the term, and a few more will be tasked to evaluate it in coming months. Seventeen states do have some form of concession to the standard parental consent requirement, ranging from written exceptions from psychologists to emancipation rights. Most often, the exceptions are requested by minors seeking an abortion without parental consent or knowledge.

These rules have become increasingly open to exceptions aiming to protect minors’ privacy and bodily integrity, safeguard the public health, and respect older minors’ adult-like autonomy and decision making ability.

Sensitive Categories of Treatment: Exceptions to the Rule

All states have some exceptions to parental consent when it comes to medical care for minors. It can become public health issue if young people are scared to get medical treatment because they have to tell their parents about them. These include procedures like testing for STDs–something that all 50 states and D.C. allow minors to do without having parental permission.

In many states, but not all, minors can also give their personal consent without their parents’ input regarding reproductive health services, with regard to contraceptive services and prenatal care, as well as drug and alcohol abuse treatment and outpatient mental health services. However, there usually is a minimum age for this kind of care without parental consent–usually early teens. These laws also don’t preclude parents from being able to require them to submit to treatment.

Abortion

One specific area of concern when it comes to minor medical care is abortion. Most states require parental consent for a minor to receive an abortion, although Supreme Court precedent allows a pregnant minor to receive an abortion under certain circumstances, such as “if she is sufficiently mature or if it would be in her best interests mentally and physically.” “Tests of maturity can include questions about good grades or extracurricular activities, as well as other less-defined queries that would allow judges to see a young person’s thinking process and understanding of the procedure,” said Doriane Coleman, a law professor at Duke University. The law is pretty inconsistent state-by-state, however, in some states, another relative could be allowed to be present at the abortion, in others a young woman could go to court to fight for her right to have the medical procedure.

Substance Abuse

When it comes to substance abuse, some states allow minors to consent to treatment. However, the laws usually also require that minors have to receive treatment if their parents consent to it on their behalf. Allowing minors the option to consent is is an attempt to make sure the treatment sticks–after all, a person who consents to treatment or requests treatment is more likely to follow through and at least stay in the program until the end.

According to the Doctor Will See You Now:

For doctors, the issue is that even if a minor is empowered by state law to give consent, they still need to ensure that the minor is intellectually and emotionally capable of giving informed consent. Thus, even if there is no age limit under state law or the age limit is very low, at times doctors may find it is inappropriate to allow a minor to consent to his own care if he is too immature or otherwise incapable of understanding the procedure’s risks, benefits and alternatives.

Payment, Confidentiality, and HIPAA

Additionally, the Doctor Will See you Now points out:

The fact that some minors can consent to their own health care and treatments in certain areas does not always mean that they actually have a right to confidentiality with respect to that care. Under the Health Insurance Portability and Accountability Act (HIPAA), practitioners are basically required to follow state law regarding confidentiality for minors, and they are given discretion over parental notification when state law is silent on the issue. Most parents will find out eventually, whether it is from HIPAA or the patient’s own volition.

Particular federally funded programs also have certain confidentiality laws. For example, services subsidized by Title X, the federal family planning funding program, have to be provided confidentially, per federal law.

Case Study: Cassandra C.

The Connecticut Supreme Court ruled recently that the state was well within its rights to require a young woman named Cassandra C. to continue undergoing chemotherapy treatments even though it wasn’t what she wanted. Her mother wanted her to do whatever she thought was best.

Because of the nature of the case, and concerns about Cassandra’s wellbeing, the case has been featured in the national news. Unfortunately, Cassandra spent every day in isolation from other patients and was under constant supervision. “She hasn’t been convicted of a crime, but it’s kind of like she’s in jail,” said Joshua Michtom, an assistant public defender and Cassandra’s lawyer. “It’s an especially lousy way to go through chemo.”

Court Orders

There are very rare situations in which the court becomes involved, because parents aren’t acting in the best interests of their children. In addition, there are cases like those outlined in the novel My Sister’s Keeper, where parents seek to have a minor child donate an organ to a sibling, or to undergo any other significantly invasive medical procedure for the benefit of another child.

Conclusion

Medical decision making by and on behalf of children and teens is a subject that is ethically, mentally, physically, and legally complex. State laws vary considerably, and they often have vague standards and language. Children should generally be involved in medical decision making to the extent of their abilities. It is not only a teaching moment, but it is also a way to create autonomy. In the case of a conflict between a minor’s wishes and a parent’s wishes, however, everyone needs to proceed with caution, especially in life or death cases. As such, it is usually wise for them to seek the advice of legal counsel and, in some cases, to proceed to court for a judicial order authorizing the proposed course of treatment.

Resources

Primary

District Court of Appeal of Florida, First District: DEPT. OF HEALTH v. STRAIGHT, INC.

Eastern District Court of Pennsylvania: Parents United for Better Schools v School District of Philadelphia

Additional

The Doctor Will See You Now: Doctor-Patient Confidentiality: How Do We Define It and When Should We Waive It?

Journal of Health Care Law and Policies: Medical Decision Making by and on Behalf of Adolescents

Journal of Pediatric Psychology: Involving Children and Adolescents in Medical Decision Making: Developmental and Clinical Considerations

Guttmacher Institute: Minors and the Right to Consent to Health Care

Philly: Should Teens Get to Say “No” to Life-Saving Medical Treatment?

Pediatrics: The Legal Authority of Mature Minors to Consent to General Medical Treatment

Editor’s Note: This article has been edited to credit select information to the Doctor Will See you Now, and some portions have been edited for clarity. 

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post Medical Care for Minors: Who Calls the Shots? appeared first on Law Street.