State of New Jersey v. M.T.S. (1992)

State of New Jersey in the Interest of M.T.S. (1992)

• The appeal questions whether 'physical force' in New Jersey's sexual assault statute is met by non-consensual penetration with only the force needed for penetration.
• The case involves a seventeen-year-old engaging in kissing and heavy petting with a fifteen-year-old, followed by non-consensual sexual penetration.
• There was no evidence of unusual or extra force.
• The trial court found the juvenile delinquent, but the Appellate Division reversed, stating non-consensual penetration is not assault unless accompanied by more than the force needed for penetration.

New Jersey Code of Criminal Justice

• Defines sexual assault as sexual penetration with another person using physical force or coercion.
• Sexual penetration and physical force/coercion are separate elements.
• The code lacks a definition of "physical force".
• The State argues 'physical force' includes any involuntary sexual touching, with lack of consent plus penetration meeting the statute's requirements.
• The Public Defender defines 'physical force' as force overcoming lack of consent, equating force with violence, requiring force beyond the penetration itself.
• Current judicial practice defines 'physical force' as any degree of physical power/strength, even without injury.
• Webster's Dictionary defines 'force' as power, violence, or constraint; exercise of strength; or strength without justification.
• Due to the varying definitions, the statute's meaning is unclear, necessitating examination of legislative intent and historical context.

Historical Context of Sexual Offense Laws

• Sexual offense laws in New Jersey were updated in 1979.
• Before this, rape law was based on English common law.
• The 1796 law required the state to prove force was used and penetration occurred against the woman's will.
• Force was determined by the victim’s response, implicating her state of mind, needing proof she didn't consent even if force was used.
• Credibility required a woman to be of good fame, immediately report injury, show signs of injury, and cry for help.
• Courts historically distrusted victims' testimony, assuming false claims due to blackmail, cover up of affairs, or psychological issues.
• Resistance was key evidence of non-consent and the defendant's force overcoming the victim's will.
• Resistance, like torn clothing, indicated significant force.
• If a woman did not resist, causing the defendant to use more force, the conduct wasn't criminalized.

Evolution and Criticism of Rape Laws

• Many jurisdictions required victim testimony to be corroborated for convictions.
• Judges cautioned juries about the challenge of proving rape.
• New Jersey courts allowed broad cross-examination of rape victims.
• Prompt complaints were needed to avoid allegations being viewed skeptically.
• Feminists in the 1970s challenged the idea that rape victims were inherently untrustworthy.
• Distrust of victims led to excessive focus on resistance evidence, putting the victim on trial.
• Reformers opposed the assumption women seduced men and falsely claimed rape to protect their virtue.
• They argued women shouldn't have extra burdens to prove non-consent or resistance.
• Research showed victims resisting intercourse risked serious injury, discrediting the idea that resisting to the utmost was rational.
• Reformers redefined rape, focusing on the forcible attack itself rather than overcoming the woman's will or chastity.
• Reformers sought to give significance to the defendant’s forceful conduct, not the victim's reaction.
• Traditional force interpretations failed to recognize force as an invasion of bodily integrity.
• Reformers advocated for abandoning the resistance requirement.

Modernization of Sexual Assault Laws

• The current law was conceived as a reform measure.
• New statutes were formed by feminist groups and modeled after the 1976 Philadelphia Center for Rape Concern Model Sex Offense Statute.
• The intent was to remove aspects adverse to rape victims.
• The reformed code replaced 'rape' with 'sexual assault'.
• The focus shifted from 'sexual intercourse' to 'penetration.'
• 'Force' or 'coercion' replaced 'submission' or 'resistance.'
• The victim's state of mind/attitude became irrelevant.
• It eliminated the spousal exception based on implied consent.

Focus on the Offender's Actions

• The reformed law emphasizes the assaultive nature, defining sexual penetration broadly beyond carnal knowledge.
• The statute is gender-neutral.
• The law defines sexual assault as penetration using 'physical force' or 'coercion' but lacks explicit definitions/examples.
• Demonstrated non-consent is not required.
• The legislature emphasized the crime’s assaultive nature, focusing on the offender’s conduct.
• References to the victim's state of mind are eliminated.
• The definition of penetration was broadened.
• The crime has an affinity to assault and battery.

Interpretation of Physical Force

• Physical force beyond involuntary/unwanted sexual penetration is inconsistent with legislative intent and eliminates focus on victim resistance.
• Any sexual penetration without affirmative and freely-given permission is sexual assault.
• Physical force beyond penetration is not needed.
• 'Physical force' is the application of any force without reasonable belief in affirmative, free permission for penetration.
• Permission for sexual penetration must be affirmative and free, inferred from acts or statements.
• Express consent is not necessary, permission can be indicated through physical actions.
• Permission is inferred if evidence suggests a reasonable person would believe the victim freely and affirmatively authorized the act.
• The focus is on the defendant's actions, not the victim's subjective state or reasonableness of their actions.
• Victim questioning is limited to determining if the defendant believed affirmative permission was freely given.
• The law doesn't burden the victim to express non-consent or deny permission, nor inquire into their thoughts/desires to resist/protest.
• Reform replaced "carnal abuse" with "sexual penetration" defined as vaginal intercourse, cunnilingus, fellatio, anal intercourse, or object insertion.

Application of Sexual Assault Statute

• For conviction, the state must prove sexual penetration occurred without the victim's affirmative and freely-given permission.
• Proof can be based on conduct/words and should demonstrate beyond a reasonable doubt that a reasonable person wouldn't believe there was affirmative/free permission.
• If evidence suggests defendant believed permission was given, the state must prove either the defendant didn't believe it or their belief was unreasonable
• The state always bears the burden of proof.
• Cases are fact-sensitive.
• The trial court determined the victim hadn't expressed consent.
• The record provides support for the trial court's decision.
• The disposition of juvenile delinquency for second-degree sexual assault is reinstated.

Affirmative Consent at SUNY (2014)

• Affirmative consent is a knowing, voluntary, and mutual decision to engage in sexual activity.
• Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.
• Silence or lack of resistance does not demonstrate consent.
• Consent is not based on a participant's sex, sexual orientation, gender identity, or expression.

Additional Guidelines for Affirmative Consent

• Consent to one act doesn't imply consent to others.
• Consent is required regardless of drug/alcohol influence.
• Consent can be withdrawn anytime.
• Consent is impossible when incapacitated through lack of consciousness, involuntary restraint, or other inability to knowingly choose.
• Intoxication may cause incapacitation and inability to consent.
• Consent is invalid if coerced, intimidated, or threatened.
• Once consent is withdrawn or can't be given, sexual activity must stop.
• The institution will provide a policy for alcohol and or drug use amnesty in sexual violence cases.

Importance of Reporting Sexual Violence

• The health and safety of students at the State University of New York (SUNY) and its State-operated and community colleges is of utmost importance.
• [College/University] recognizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) may be hesitant to report sexual violence because of potential consequences for their own conduct.
• [College/University] strongly encourages students to report incidents of sexual violence to campus officials.
• A bystander reporting in good faith or a victim/survivor reporting sexual violence to [College/University] officials or law enforcement will not be subject to campus conduct action for violations of alcohol and/or drug use policies occurring at or near the time of the sexual violence.

Affirmative Consent on College Campuses

• Affirmative consent in university sexual encounters is a contentious issue.
• Some schools require ongoing agreement, not just the absence of refusal.
• This has caused some anxiety, over promising young men being labeled as rapists in less clear situations.

Common Misconceptions of Guidelines

• Jed Rubenfeld suggested an oversimplified view of “Yale’s definition of sexual consent.”
• He said under its definition, "a person who voluntarily gets undressed, gets into bed and has sex with someone, without clearly communicating either yes or no, can later say—correctly—that he or she was raped.”
• This view is a law school hypothetical and an oversimplification.
• Real-life sexual encounters involve constant communication.
• Sexual cues can be manifold and familiar, include leaning in or pulling away, or verbal and non-verbal signals.
• "Affirmative consent" is not a femi-nazi trap or a presumption of guilt, instead seeking willing participation.

Distinguishing Discipline from Criminal Justice

• University level of discipline should not be confused as rape trials.
• A university sexual misconduct boards establish if a school policy has been violated, whereas a rape trial establishes if a crime was committed.
• Sexual misconduct includes a non-criminal behavior that may violate community sexual standards.
• Criminal judgements may lead to imprisonment, where university hearings may only lead to expulsion.

Broadening Disciplinary Codes

• Colleges are obligated to respond to crimes, in accordance with federal and state guidelines.
• Disciplinary codes expand, as students deserve freedom from harassment and obstacles.
• Sexual misconduct creates impediments to educational access.
• Rubenfeld argues schools should shrink their disciplinary codes to match criminal statutes, stating sexual assault on campus should match laws.
• States including Connecticut require "force" or "threat of force" for the crime of sexual assault.
• Rubenfeld advocates for this definition and excising consent in criminal law, besides with BDSM.
• Rape violates bodily self-possession through overpowering and imprisonment.

Scenarios and Hypothetical Actions

• A hypothetical with Cary and Nat at a party shows the complexities of consent.
• Cary and Nat kiss, get undressed, and get into bed.
• If Nat then falls asleep, or says to save sex for a sober time, or says "no, please stop,” and Cary proceeds to have penetrative sex with Nat, these are actions with consequences.
• Those scenarios may count as campus sexual misconduct actions
• Universities should instill principals of free and equal participation, and premise sex on joint agreement.
• Colleges should emphasize mutually agreed, unambiguous actions.

Affirmative Consent: Feminist Viewpoints

• Feminist Catharine MacKinnon calls acts rape when women feels violated.
• Affirmative consent appears in campus codes and reforms state based criminal law, for improved sexual culture.
• This gives women increased leverage over sexual encounters and social incentives for men to ensure consent before initiating contact.
• This essay asks feminists to debate these views.

Questioning the Impact of Affirmative Consent

• Affirmative consent may be intense and sex-negative and enable people to retract and punish partners , functioning to installs traditional gender norms.
• Consent has never been treasured in radical dominance feminist thought.
• This essay asks feminists to debate these views.

Envisioning Emancipation

• Catherine A. MacKinnon argues that the real vision of emancipation is a world in which women have sex only when they desire or want it.
• Laws should impose on men who have sexual contact with women who didn't desire it.

The Supreme Court Standard

• Sex must be (1) unwanted (2) severe (3) or pervasive
• It must (4) have a detrimental impact on the complainant’s view of a reasonable person.
• Campus laws are losing strictness and "severity or pervasiveness" and invites complaints based on subjective unwantedness alone.

Proposed Changes to Rape Law

• For criminal law to change to this standard would require that sex be wanted for it not to be assaultive.

Debating Affirmative Consent Law

• Should there be an affirmative consent requirement in law of sexual assault?
• The ALI debate is ongoing.
• Affirmative-consent proponents believe penetration should be criminalized with no positive agreement.
• In their definitions, affirmative consent is "an action, not a state of mind."
• sexual crime, contact is petty.
• Contact includes any bodily contact, not just intimate areas.
• The drafters say they are willing to convict people of sexual crimes when the complaining witness was feeling passionate desire for precisely what happened.
• Consent and the expression of agreement can not be avoided.
• Extending enforcement to all unwanted contact is not always the best outcome.e