Friday, October 26, 2007

Why the US need to change the legal definition of "consent" to sexual activity

The Georgia Supreme Court recently declared that a sentence of 10 years' imprisonment for sexual assault on a child was unconstitutional, as it was so harsh as to amount to "cruel and unusual punishment".

This case has received more than its share of publicity over the past few months.

The accused in this case was Genarlow Wilson, aged 17 at the time of the events. Mr. Wilson and a few of (adult) friends of his were having a New Year's Eve party in a motel room. They had invited over a number of underaged girls, including the victim, who was then 15 years old. It was reported that the lot had consumed more than their fair share of booze and drugs.

The girls were then sollicited to perform various sex acts on many of the young men present, while their buddies would film the scene. A video showed Mr. Wilson receiving oral sex from the 15 year old girl, so there was no debate about whether or not the sexual activity happened . (Oh, and apparently, the accused subsequently bragged about what had happened at the party at school.)

The video also showed Mr. Wilson having sex on a bathroom floor with another girl, who looked sleepy and was visibly seriously intoxicated at the time. On the video, she did not ask Mr. Wilson to stop (but then again, the video didn't show any verbal interaction between the two.) The 17 year-old girl, who had waken up naked and confused the next morning, immediately reported the events to the police, and claimed that she had been raped.

Eventually, Mr. Wilson was charged with aggravated child molestation, found guilty and sentenced to 10 years' imprisonment. Now, the big debate in the media was about the fact that this offence, in its legal definition, did not take into account the fact that the 15 year-old victim was "consenting", that the victim and the accused were so close in age, that it was "just" a fellatio, and that the accused was a promising athlete and a "good boy".

(The State of Georgia, subsequent to the outcome of this case, changed the formulation of the offence so as to take the victim's "consent" into account.)

I have a few issues with the media treatment of this case, and with the recent quashing of Mr. Wilson's sentence.

First, I would just like to clarify that, although I agree with the Conservatives' proposition that the age of consent to sexual contact with adults be raised from 14 to 16, I also think it's stupid to seek to criminalize sexual contacts among (consenting) teenagers. Let's face it: when you're 16, horny and a just typically rebellious, you're gonna have sex if you want to, whether your parents, the local clergyman, your teachers or the law say otherwise.

However, sexual contacts, even among teenagers, must always be consensual.

Secondly, some people seem to be labouring under the delusion that when there's no penetration, when it's "just" a fellatio, it's really not that bad, and the situation should not give rise to criminal charges. Well, if that's your opinion, you're wrong. If you can't understand why having some drunken guy's cock shoved down your throat is morally wrong enough to be criminalized, then quit reading now.

Thirdly, it's no secret that most American jurisdictions have fucked-up definitions of what constitutes "consent" to sexual activity. While the notion of "consent" colloquially refers to something that a person genuinely wants, or to a free and enlightened decision (such as in health or contractual matters, for instance), "consent" to sexual activity in most American criminal statutes (as well as under the old, i.e. pre-1985, version of our own Criminal Code) is equated to passivity, lack of resistance, and the absence of the use (additional) physical force or the threat thereof.

This way of thinking is stupid and unrealistic. Basically, it means that unless you're beaten or threatened and you attempt to (physically) resist the assault, you will be deemed to have consented to having sex inflicted upon you. It completely disregards the fact that, as in this case, a person will not protest or resist because she is smaller than her assailants, outnumbered, confined, scared, or intoxicated. In situations such as those involved in the Wilson case, most females would not be foolish enough to think they can simply walk away or refuse to perform the acts, so that most criminally-inclined males would not have to resort to additional physical violence anyways.

St. Maria Goretti might have become a saint for choosing the opposite route, but most women do not envy her fate.

(Why to I keep saying "additional" physical violence? Um... It might have to do with the fact that having someone madly thrust inside you against your will is already violent and painful enough in and of itself.)

In my opinion, even if Mr. Wilson had been charged under the new version of the offence and that the victim's consent had been part of the equation, he might as well have been found guilty anyways, because it's very likely that the young woman's consent was viciated by the coercitive nature of the circustances.

Finally, even if the prosecution had not been able to prove beyond reasonable doubt that Mr. Wilson's 15 year-old victim had given her free and enlightened consent, he and his buddies should still have been convicted for production, distribution and possession of child pornography.

I say 10 years' imprisonment was not too harsh. It sounds just right to me.

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