The Kickham Comment - Boston Criminal Attorney Blog
In my previous post on this important subject, I talked about the literal explosion recently, in accusations and allegations of “sexual assault” being made against a wide variety of individuals – against the famous and anonymous alike. I’m writing about this because I’ve been receiving a considerable number of phone calls recently – from both men and women alike – worried that they, too, might be accused of “sexual assault” – for the most minor of events. For things that, frankly, strain belief that someone would make such a serious allegation.
This explosion of “sexual assault” allegations have followed the ‘shocking’ news that a physically unattractive Hollywood producer – Harvey Weinstein – had a “casting couch,” and pressured certain actresses for sex if they wanted to appear in his films. To begin with, to my knowledge, the actions that Weinstein are reported to have engaged in – pressuring actresses to socialize with him and/or have sex with him if they wanted to see their careers advance in the film industry – can indeed be classified as boorish and tasteless. If the allegations are true, Weinstein can indeed be called a social loser for having to resort to economic and career pressure to obtain sex. But such suggestions by do not legally constitute “sexual assault.” Far less do they constitute “rape.”
In the field politics and public policy alone, no less than 40 lawmakers – nearly all of them men – in 20 states have been publicly accused of some form of alleged “sexual assault,” “sexual harassment,” or an amorphous accusation of “misconduct” by more than 100 people, according to an analysis performed by USA today network. Again, that’s just in the field of politics & government, alone. These numbers do not include accusations made against members of the news and entertainment media, or business and leading corporations, law, medicine and high-tech professions.
These individuals’ names and reputations have been forever tarnished. Almost all of them have lost their careers and jobs. Many of their marriages and/or relationships have been seriously damaged. On the accusers’ end, many of these accusations are not just several years old – but alleged to have occurred decades ago. The accused – and it is critical to note that many of these accusations are just that at this stage – accusations – have been vilified and made out to be perverts and sexual abusers, splashed across almost every medium across the United States, and the world. Several of these accusations may be true – but what of those that are not? What happens to the accused then – when they have already been convicted in the court of public opinion, long before a judicial process has even begun?
The problem that arises when many people claim “sexual assault,” are two-fold: 1) It is analogous to the problems that arise when people claim “free speech”: They think they know what, legally speaking, they’re talking about, but they don’t. And they don’t know what they’re talking about, because they’re not lawyers who’ve spent years of their lives studying in law school, then taking a 2-3-day state bar exam, then practicing law for years. Thus, they throw around terms like “free speech’ and “sexual assault” and “rape,” as if they’re legal experts. And they’re not. 2) Equally troubling, the legal definition of “sexual assault” can be extremely vague and subject to individual interpretation.
The generally accepted legal definition of “sexual assault” is as follows: “Sexual assault is any type of sexual contact or behavior that occurs without the explicit consent of the recipient. Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape.” Rape is a separate legal definition. Generally speaking, “rape” is defined as “Non-consensual sexual intercourse that is committed by physical force, threat of injury, or other duress.” Marriage is no longer a defense to a charge of rape. What is legally crucial to these sex offenses is the alleged victim’s lack of consent – and this includes the alleged victim’s inability to say “no”, due to impairment by alcohol or other drugs. To convict a defendant of the charge of rape, some form of sexual penetration, must occur, however slight. That penetration may be penile, digital, oral, or with an object. Each separate penetration can be cited as a separate count of rape. Obviously, acts such as forcible sexual intercourse, and sodomy are easy to identify.
The legal problem with many of the accusations of sexual assault being made against so many public (and non-public) figures in this current social climate, is that they are often so vague. What troubles me as a sex charges defense attorney, is this very vagueness. Someone unintentionally bumps into another person somewhere – at work, or just walking in a public place – and suddenly, a “victim” is alleging a “sexual assault.” That is not a sexual assault. Nor is taking someone’s hand and asking someone out on a date. Nor is placing a hand on someone’s shoulder and saying hello. Nor is complimenting someone on what they’re wearing or their appearance. Nor is telling someone that they’re handsome or beautiful.
Crude comments of a sexual nature, or repeated suggestions by a supervisor that a subordinate socialize with them, could be construed to constitute something called “contributing to a sexually hostile work environment,” but – and this is extremely important – that is a labor law offense. It is not a “sexual assault” or a “sex crime.” And so many of the accusations ricocheting around the news media of late, are indeed amorphous. Example: “He/she sexually assaulted me.” Exactly what does the accuser mean? Many times, the truth is that the accusation nowhere nearly meets the legal reality of the definition.
Too many people’s names, reputations and careers are being ruined by the mere accusation of “sexual assault” and/or “sexual impropriety”, and as a sex charges lawyer who has seen too many of these false accusations, I feel it must stop.
I’ll discuss why, in Part Three of this post, in a few days.