Rape Law After Harvey Weinstein by S. Green
I see some parallels and applicability to the topics of C.S.A. (Clergy Sex Abuse), complementarian teachings to women about sex and marriage, and how churches mistreat victims of sexual in the Christian church, as the issues discussed in the article below.
by S. Green
In the #MeToo era, should we see sexual contact between the powerful and the relatively powerless as inherently coercive?
January 4, 2019
…Mr. Weinstein’s alleged crimes and misconduct can be divided into three broad categories. The first consists of physically forcing a victim to endure a sexual assault against her will.
This is what the actress Annabella Sciorra, for example, alleges Mr. Weinstein did to her in 1993, when she says he attacked her in her Manhattan apartment. If proven, such conduct would clearly constitute rape.
A second category involves inducing a victim into sex by using coercive, non-violent threats – of the “have sex with me or you’ll never work in this town again” sort. Conduct like this typically wouldn’t have been prosecuted before the mid-1990s.
Today, it routinely is.
Legal authorities now share a broad consensus that sex without valid consent is rape, and that “consent” obtained by coercive threat isn’t valid.
What won’t be on trial in January, however, is a third and more problematic category of sexual misconduct, of the sort that not only Mr. Weinstein but countless other men have been accused of during the #MeToo movement.
The response to this category will determine the scope of rape and sexual assault law in the years to come.
… Let’s assume that a major producer did procure consensual sex from a struggling actress by promising her a part in a movie. Should that be a crime?
Many liberal and libertarian observers would say no, viewing it as a private matter between two adults, not unlike consensual prostitution.
However distasteful it may be to obtain sex in this manner, such observers would say, that is no justification for making it a crime. Indeed, for many liberals and libertarians, one of the great legal achievements of our time is that consensual sex of all types – even kinds that society may frown upon – has, in much of the Western world, largely been decriminalized.
Many feminist scholars strongly disagree with this way of thinking. Sexual contact among mighty movie moguls like Mr. Weinstein and relatively powerless players like Ms. Evans [actress who, in one version of events supposedly claimed that Weinstein promised to give her an acting job if she performed oral sex on him, and in another version, she claimed that he forced her to perform oral sex on him], they would argue, is inherently coercive.
The supposedly “consensual” nature of such encounters is therefore illusory.
According to this view, the law of sexual assault should be expanded even beyond what it has been in recent years, to include any sex obtained in the context of a hierarchial, essentially uneven balance of power.
This point of view is already enshrined in a legal doctrine known as “abuse of position,” which prohibits – and often criminalizes – sex among prison guards and inmates, police officers and arrestees, health professionals and patients, and, increasingly, members of the clergy and their adult congregants.
Under this body of law, it doesn’t matter whether a defendant could present evidence that the sex with a person in his or her care or control was actually consensual.
…Under the “abuse of position” doctrine, sex in such hierarchical relationships is intrinsically nonconsensual; the possibility that the weaker party will be exploited or coerced is simply too significant to risk.
One of the great unanswered questions of the #MeToo era is the extent to which law based on the idea of the “abuse of position” should be expanded – going beyond the realms of guard/inmate, doctor/patient, and officer/citizen to include other types of hierarchial relations.
Consider, for example, the many kinds of relationships involved in countless #MeToo allegations, such as those between high-ranking government officials and members of their staffs, corporate executives and their subordinates, celebrity chefs and their employees, and college professors and their students. Given the imbalance of power that frequently exists in such relationships, should the law presume nonconsent?
Each of these situations poses a dilemma.
On the one hand, a society that takes seriously the right of people not to have sex that they don’t want must establish and enforce laws that protect that right; focusing on sex in the context of hierarchical relationships is a sensible extension of that principle.
On the other hand, by imposing liability in the absence of actual evidence of nonconsent, we risk undermining the right of individuals to have the sex they agree to have, even when we find it unsavory.
How society harmonizes these potentially conflicting types of claims will determine the fate of rape and sexual assault law for years to come. Amid the #MeToo movement that Mr. Weinstein’s misconduct has spawned, that task has become all the more urgent.