The Kickham Comment - Boston Criminal Attorney Blog
In my last post on this subject, I discussed the irresponsibility of some organizations and media outlets, in taking extreme license in promoting legally invalid definitions of rape. In that post, I had mentioned views advocated by some colleges and universities.
When it comes to the university and academic community, consider the views of no less august an academic institution than Harvard University. In 1992, Harvard assembled a University Date Rape Task Force to study this problem and make recommendations for legislative changes in this area of Massachusetts sexual assault law. Shockingly, that report defined the majority of consensual sex between a couple as “rape” by the male, and proposed the most far-reaching restrictions of consensual sex imposed by any secular university in America. How? By requiring that almost all sex acts between a couple meet the requirements of a veritable contract negotiation, involving “expressed consent” and/or “reasoned consent” in advance of any sexual contact whatsoever. Apparently, in reaching these recommendations, one can only surmise that most of these task force members never had sex themselves.
Consent to sex rarely if ever involves negotiations and “expressed consent.” It is almost always the product of just the opposite: An escalating series of amorous exchanges which produce decreased reason and increased passion. More so, people in sexual relationships learn their partners’ preferences, enabling them to interpret what their partners want, without expressed discussions. Harvard University’s task force wanted to deem any sexual act engaged in by a couple as “rape” unless it occurred following an openly articulated, explicitly communicated “yes” by the woman (note: the report never even mentioned the possibility that a man could be the victim of a same-sex rape.) This Harvard-produced report ignored the fact that most couples often have sex without explicitly discussing it beforehand. It’s called spontaneity, the last time I looked. According to the Harvard report, rape encompassed “Any act of sexual intercourse which occurs without the expressed consent of the complainant.”
Thankfully, several of those recommendations were never fully implemented at Harvard, and that all occurred 18 years ago. So why is it relevant now? Because it created a wave of hysteria about what “rape” legally is and isn’t; it dovetailed on the appearance of GHB and other date rape drugs; and this report and others has fed radical feminist agenda to expand the legal definition of this crime, to include events and actions that would never before have been considered “rape”. Think not? Consider the emergence of a new term of art in this area of law – this one now called “Gray Rape.” This ‘creative’ term has been developed to describe any act of sex occurring between two people (heterosexual or homosexual) which:
• Does not involve any violence, or the threat of any violence • Does not involve any coercion or pressure • Does not involve the covert use of any intoxicating or sedating drugs or chemical substances
but which involves some element of second-guessing or regrets, “the morning after”, or following the sex that transpired. Thus, if someone engaged in sex and did not object, but later had “second thoughts” about whether he or she really should have had sex (for any reason at all – religious, cultural or otherwise,) the other partner might be charged with being a rapist.
Do not make the mistake of thinking this doesn’t happen, or that if it does, it happens rarely. Just recently, I defended a college student accused of “date rape.” An investigation of the facts showed that the young man accused was no more guilty of rape than you or I. The young woman involved had learned that the accused (her boyfriend,) had cheated on her with another woman, and she wanted revenge. So after they had sex at a dorm party, she accused him of spiking her drink with another drug that she had already ingested herself. These stories are not rare. They happen all the time. Due to my efforts as his defense attorney, this young man was acquitted. Another person might not be so lucky.
Media efforts to publicize these inapplicable “definitions” of rape, is what leads many people to file rape and/or sexual assault charges against innocent defendants in Massachusetts. Rape laws were developed to punish horrifying acts of violence and physical violation, and indeed they should. Date rape laws were later passed to deal with this legitimate problem, also. But women’s magazines who trumpet sex on every cover (are you listening, Cosmopolitan?) would do more justice in this area by concentrating on what rape really is, and what it isn’t, instead of feeding baseless chatter just to sell their magazines.
In the meantime, while each allegation of rape should be taken seriously, the underlying facts should be taken equally seriously. An entire life can be ruined with the pointing of one dishonest or misinformed finger.