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Sexuality, Consent, and the Law in the United States

Towards a Rhetorical Genealogy

Ben Attias
California State University, Northridge

reposted with the author's permission.

[Note: This genealogy is incomplete and should not be used in place of sound legal advice. The research below was instrumental in writing the paper "Police Free Gay Slaves," which can be read here.]

  1886: (August 26) People v. Gordon

"An assault is defined as an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another. (Pen. Code, sec. 240.) Such an attempt must be made without the consent of the person against whom it is made. If it be made with his consent, it will not constitute an assault. It is a maxim of the law that one who consents to an act is not wronged by it. [**763] (Civ. Code, sec. 3515.) Where, therefore, a person is charged with an assault upon the person of a woman to violate her person, the question of consent is material; there must be some evidence that the act was committed without her consent, and the fact is to be found by the jury upon the evidence of the circumstances in which the act was committed." (70 Cal. 467, 468; 11 P. 762, 763)

The case involves rape of a ten year old girl, and the court found that a 10-year-old is incapable of consent.

1907: (October 8) Thompson v. Supreme Tent of the Knights of the Maccabees of the World (189 N.Y. 294; 82 N.E. 141)

This one's a gas. The Knights are a secret society with mildly violent initiation rituals; Thompson was injured during one of them. The court recognize the good this group does for its members and for society but implores the group (corporation actually) not to be so violent. No criminal charges here.

1922: (January 21) People v. Gibson

15 year old girl consented to being "debauched by lecherous handling." (232 N.Y. 458; 134 N.E. 531) (Interestingly the court lowered the charge from rape because they ruled that an 80-year old guy couldn't possibly get hard enough to fuck.) Sayeth the court: "Therefore, the consent of the girl does not exonerate one on the charge of common assault if an assault is otherwise included in such illegal conduct. If she licenses him to corrupt her morals, the license is void and the consent is no defense. The vicious propensities of the child did not excuse the conduct of the accused. That one consents to fight another in a prize fight is no defense to a charge of assault. (Comm. v. Collberg, 119 Mass. 350.) The act is unlawful and so the blows given amount to an assault. The fact that prize fighting is an independent crime (Penal Law, @ 1710) does not bar a prosecution for the assault. Nor does the fact that the impairment of a child's morals is an independent offense preclude a prosecution for an assault in the third degree where the child, a consenting party, is debauched by means of lecherous handling by the defendant." (232 N.Y. 458, 462; 134 N.E. 531, 532)

1946: (March 4) Martin v. Commonwealth (Homicide case)

Held: "4. CRIMINAL LAW -- Defenses -- Invitation and Consent. -- Invitation and consent to the perpetration of a crime do not constitute defenses, adequate excuses, or provocations. 5. HOMICIDE -- Defenses -- Consent. -- Consent of the deceased is not a defense in a prosecution for homicide."

Kind of an amusing story; Mr & Mrs Martin are drinking with friends when they have an argument about which one of them is sleeping around more and Mrs. Martin gets angry and says "If I had a gun I'd shoot you." Mr. Martin, ever the helpful hubby, runs to the closet and brings back a shotgun and even shows Mrs. Martin how to load it; then he says "shoot me goddamn you shoot me." She subsequently blows the poor fucker's brains out. The court ruled: "[4] Invitation and consent to the perpetration of a crime [*1019] do not constitute defenses, adequate excuses, or provocations. [5] 'If the doing of a particular act is a crime regardless of the consent of anyone, consent is obviously no excuse. It follows, therefore, that consent of the deceased is not a defense in a prosecution for homicide. The right to life and to personal security is not only sacred in the estimation of the common law, but it is inalienable.' 26 Am. Jur. (Homicide, section 103) p. 227." ( 184 Va. 1009, 1018; 37 S.E.2d 43, 47)

Highlights: "I had about four or five drinks from about 9:30 P.M. up to the time I shot my husband but I was not drunk."

(May 17 - indictment) Commonwealth v. Farrell (Mass. Supreme Ct.)

Consent was brought up here when deranged cop (or so it seems anyway) Thomas Farrell terrorized a woman in her hotel room and burned his initials all over her body with a cigarette. (Was he really abusing the authority of his badge as the prosecutor claimed or was he merely taking full advantage of it?)

Lots of junk in here about why a cigarette is a dangerous weapon and the precise definition of "maim" but not much on consent.

Highlight: "Assignment 19 is based upon an exception to the action of the judge in striking out testimony given by a witness for the defendant that the complainant had a bad reputation in Manchester, New Hampshire, for morality and chastity. On cross-examination the witness was examined at length as to her understanding of the meaning of the word "chastity." She was also questioned with care by the judge as to this matter. The record discloses that she had but an indefinite and inadequate understanding of the meaning of that word. In these circumstances we are of opinion that the action of the judge in striking out the testimony in question cannot be said to have been erroneous." ( 322 Mass. 606; 78 N.E.2d 697, 707)

1953: (May 29) Dyson v. United States

A case of assault-by-fondling. Some guy asked a cop for a light, then reached out and "squeezed the officer's genitalia." (98 A.2d 287). The major question of the trial was, did the officer want his genitalia squeezed? (I swear I'm not making this up). "Unless the man so fondled was himself a deviate and responded favorably to the approach, such response would of course constitute consent and nullify the offense." (D.C.Mun.App., 97 A.2d 137 n3) The court concluded, no, the officer did not want his genitalia squeezed.

From the dissent: " Perhaps defendant is a homosexual; perhaps he had engaged in homosexual acts; perhaps on the night in question he solicited the officer to engage in a homosexual act. He was not charged with any of these things. He was charged with assault and convicted on proof of homosexuality." (138)

(July 14) McDermett v. US

Officer Klopfer frames a fag. He sees a guy jerking off in a washroom at the XXX Theatre (OK, what did he expect to find there, the Policeman's Ball? or is that balls...). Anyhow Officer Klopfer walks to a hotel with defendant and then joins him for another bathroom break; defendant again begins to jerk off and asks Officer Klopfer if he'd like to engage in a bit of sodomy in his room. Since Officer K. lied about having a room in the hotel, he pulls out his badge and arrests the guy for (attempted sodomy?). Anyway the judge saw this as a frame-up, especially since when Officer K. found defendent abusing himself in the restroom "he did nothing to stop his act of onanism." (98 A.2d 287, 289)." An officer of the law, as we have said, has the duty of preventing, not encouraging crime. As appellant's counsel says in his brief, an officer should not be permitted to 'torment and tease weak men beyond their power to resist' and then attempt to make out a case of assault. " (290)

Interestingly the court asks hypothetically, what if a woman were making the complaint instead of Officer K.?

1954: (september 8) Banovitch v. Commonwealth

1957: (June 26, Decided) Taylor v. State

"A criminal assault which tends to bring about a breach of the public peace is treated as a crime against the public generally, and therefore the consent of the victim is no defense. On the other hand, a criminal assault which is not accompanied by the threat of serious hurt or breach of the public peace is treated as a crime against the person, and the consent of the person assaulted is held to be a good defense, since the absence of consent is an essential element of the offense." (214 Md. 156; 133 A.2d 414; 65 A.L.R.2d 740)

Dealt with an act of consensual "oral perversion" between two men (one 15 years old). It was decided that oral perversion with a 15-year old was enough of a threat to the state (or to "public peace") to eliminate consent as a reasonable defense. The dissenting opinion here is good; it addresses both the inconsistency of age-of-consent laws in the state generally and makes the argument that the 15 year old was intelligent enough to know what he was doing.

1964: (September 24) People v. Lenti

Lenti et. al use the defense of consent in the case of a violation of NY's anti-hazing statute. The court held: "Certainly in this instance, the boys who submitted to the physical pounding could not consent to the perpetration of those acts. It is true they were warned that there would be physical abuse. But did not the extent of the physical harm exceed the terms of any consent? Surely consent is not a carte blanche license to commit an unabridged assault. One boy spent several weeks in a hospital as a result of the beating he sustained. Can the consent of this boy be deemed to be intelligent, voluntary and undeceived? Under the circumstances of the case at bar, the defense of consent is not available to the defendants." (44 Misc. 2d 118, 124; 253 N.Y.S.2d 9, 15)

1967: (April 28) People v. Samuels

The infamous "consent is only an exception in football" case.

"consent of the victim is not generally a defense to assault or battery, except in a situation involving ordinary physical contact or blows incident to sports such as football, boxing or wrestling." (250 Cal. App. 2d 501, 513; 58 Cal. Rptr. 439, 447)

"It is a matter of common knowledge that a normal person in full possession of his mental faculties does not freely consent [*514] to the use, upon himself, of force likely to produce great bodily injury. Even if it be assumed that the victim in the "vertical" film did in fact suffer from some form of mental aberration which compelled him to submit to a beating which was so severe as to constitute an aggravated assault, defendant's conduct in inflicting that beating was no less violative of a penal statute obviously designed to prohibit one human being from severely or mortally injuring another. It follows that the trial court was correct in instructing the jury that consent was not a defense to the aggravated assault charge." (250 Cal. App. 2d 501, 513; 58 Cal. Rptr. 439, 447)

1968: (April 17) Cotner v. Henry

Indiana's sodomy statute held to be constitutionally questionable. In the privacy of the bedroom, Cotner and his wife engaged in an act of sodomy. His wife later brought a complaint, and he was charged with violation of the statute and given a sentence of 2-14 years (which seems a bit excessive for a blowjob, don't you think?). Force was not brought up as an issue; the only issue was the violation of the letter of the law. Cotner pled guilty, but his plea was vacated on a technicality (he hadn't been informed of his rights). Which means even though the statute itself was held to be constitutionally "questionable," the statute is not voided as unconstitutional because the court didn't have the authority to rule on that issue given the prior technicality.

1969: (August 27) Towler v. Payton

Virginia Sodomy Laws apply to married couple if force is used. (I don't know the law in Virginia, but it seems to me that if force is used the crime is rape -- or "marital rape" depending on the law in Va. -- rather than "sodomy," no?) Consent wasn't really an issue here except in the broader context of marriage -- i.e. defendant claimed that the marriage constituted consent.

1973: (March 6) Jellum v. Cupp

(Consent was not an issue here but the case is cited in the consent cases so I'm adding it here.)

Oregon's "act of sexual perversity" statute is unconstitutionally vague. Jellum accosted a woman in the supermarket, forced her to the ground, and peed all over her.

The court decided that the statute in question doesn't apply to this conduct, nor was there anything else in Oregon law that prohibited such conduct. So I guess it's not OK to smoke a joint in a Portland shopping mall but knocking someone over and urinating on them is fine?

(May 4) State v. Fransua

Two guys in a bar decide to release their homoerotic aggressive impulses with recourse to firearms. Defendant says "If I had a gun I'd shoot you." Prosecution witness produces a gun and says, go ahead, shoot me. Defendant does, and wounds but doesn't kill him. Sez the court: "Whether or not the victims of crimes have so little regard for their own safety as to request injury, the public has a stronger and overriding interest in preventing and prohibiting acts such as these. We hold that consent is not a defense to the crime of aggravated battery, @ 40A-3-5, supra, irrespective of whether the victim invites the act and consents to the battery." (85 N.M. 173, 174; 510 P.2d 106, 107; 58 A.L.R.3d 656)

1976: (April 10) Mark IV Health Club bust.

Involved over 100 cops, 2 buses, 2 helicopters. 120 arrested; 40 people charged with violating an 1899 law against slavery. Still haven't found a published case on this but in the end 4 plea-bargained for community service.

Highlights: "Police Free Gay Slaves" (Orange Country Register headline) "Rocky Neptune, 24, who had been purchased for $40 as the Mark IV raid began, complained that the LAPD's new plastic handcuffs cut his hands and that the cops hadn't allowed their captives, who were full of beer, to go to the bathroom. Those, he said, 'were the only signs of sadism that I saw all evening." (Newsweek, Apr 26 1976)

(August 5, decided) State v. Brown

Mr. Brown beat the shit out of Mrs. Brown and claimed "consent" on the basis of an understanding between the couple that if she got drunk he would punish her by "physically assaulting her."

"Whether the victims of crimes have so little regard for their own safety as to request injury, the public has a stronger and overriding interest in preventing and prohibiting acts such as these. 510 P. 2d at 107." (143 N.J. Super. 571, 576; 364 A.2d 27, 30)

"This court concludes that as a matter of law, no one has the right to beat another even though that person may ask for it. Assault and battery cannot be consented to by a victim, for the State makes it unlawful and is not a party to any such agreement between the victim and perpetrator. To allow an otherwise criminal act to go unpunished because of the victim's consent would not only threaten the security of our society but also might tend to detract [**32] from the force of the moral principles underlying the criminal law." (143 N.J. Super. 571, 579; 364 A.2d 27, 31)

State v. Beck doesn't apply because it is an old case and it was decided with "anachronistic reasoning and twisted logic" (143 N.J. Super. 571, 578; 364 A.2d 27, 31)

1978: (April 4) Balthazar v. Superior Court of Mass.

Defendant forced a woman to committ the "unnatural and lascivious act" of fellatio and the "principle witness herself" even went so far as to "put her tongue on petitioner's backside."

"In light of the diversity of conduct that could conceivably be covered by the terms "unnatural" and "lascivious" and the fact that there are certainly acts that are less natural and more universally condemned than Balthazar's conduct (for instance a range of sado-masochistic behavior), Balthazar could reasonably believe that the statute was aimed at other acts than his." ( 573 F.2d 698, 701)

(November 8) State v. Battiasta (Ohio 5th App. Dist.; Slip Opinion)

This one looks to me like a case of clear-cut rape and assault, but the court ruled that a conviction was unwarranted and overturned it because the lower court hadn't allowed crucial evidence in that would have proved consent. Jane goes with her boyfriend home from the bar with the intention of getting her brains screwed out. Boyfriend has buddy waiting naked in bathroom; buddy grabs Jane and forces her to suck him off, boyfriend ties her up, boyfriend and buddy take turns raping her and beating her, boyfriend calls more friends and they take Jane somewhere else for a gang bang. Basically the evidence which the lower court didn't allow that the appellate court says could have established consent was a birthday card from the girl to her boyfriend (the rapist) that said "I think you're a brute, an animal and a Sex Fiend! - - - And i want you to know i appreciate it! Happy Birthday! To a man who won't stand anything he doesn't like, do without anything he desires, or even be polite to people unless they please him. As mean as you are - you will live a century & then some - Happy Birthday, Turkey!" and a comment overheard in a bathroom to the effect of "I love to be beaten." According to the appeals court, Jane pretty much consented to everything except maybe to having the barrell of the shotgun rammed inside of her (there were pictures of this) just by expressing masochistic desires. *Very* sad case, and this one in combination with the Samuels case tells a very sad story about the notion of "consent" and power relations of gender and sexuality, IMHO.

1980: (April 1) Commonwealth v. Appleby

Held that concensual s/m is no defense when assault with a weapon is the crime; crucial issue in defining battery is "intention" of the attacker; any right to privacy with regard to sexuality is outweighed by state's interest in preventing the violent use of "dangerous weapons." "The fact that violence may be related to sexual activity ... does not prevent the state from protecting its citizens against physical harm. The invalidity of the victim's consent to a battery by means of a dangerous weapon would be the same, however, whether or not the battery was related to sexual activity." (380 Mass. 296, 310; 402 N.E.2d 1051, 1060)

(Note that in this case the victim claimed the relationship was not consensual, which makes the above finding on the part of the court unnecessary to the decision the judge made).

1984: (July 16) 31 West 2nd St. Associates v. Evening of theUnusual, Inc.

Club O busted under NY's brothel laws (prohibiting "a place of assignation for lewd persons").

"I hold that, at least at Club O, there is little if any difference between sex and sadomasochism....Whether it is straight heterosexual intercourse or of the somewhat deviant variety of sexual behavior evidenced at Club O, I hold that they are one and the same for the purposes of establishing a case under RPAPL 711 (subd 5) [the NY brothel law]"

Highlight: "The respondent's witnesses repeatedly described their spankings, whippings, bondage, and the like, to be sensual, erotic or foreplay forms of behavior as opposed to explicit sexual conduct. However, the testimony supports the conclusion that the sadomasochistic conduct at Club O did not occur in isolation, but rather was so necessarily intertwined with sexual conduct (such as exposure and fondling of the genital areas, and although disputed, sodomy, sexual intercourse and the use of dildos) as to render the sadomasochism inseparable from the sexual conduct. Under the circumstances of this case, it is impossible to delineate when the sadism and <masochism> ended and when the sex began. Nor is that necessary because I hold that, at least at Club O, there is little if any difference between sex and sadomasochism."

1985: (May 28) State v. Collier (Iowa Ct of Appeals)

Found that s/m activities are included under the state of Iowa's assault laws. An out-call-model pimp raped and beat the crap out of one of the women who works for him because she spent the day partying instead of bringing home the bacon. Iowa law says it's ok to injure someone in "sport, social or other activity" (and I think dueling was legal there for a long time as well) so the guy's lawyer claims this was part of a "social or other activity." (The model claims otherwise, as did the court).

Highlights: "There can be little doubt that the sadomasochistic activities involved in this case expose persons to the very type of injury deemed unacceptable by the legislature. Were we to follow the defendant's broad interpretation of "social activity," street fighting, barroom brawls and child molestation could be deemed acceptable social behavior, since such conduct is considered acceptable by some segment of society." (372 N.W.2d 303, 307).

J Schlegel's dissent: "[because the words "social or other activity in the Iowa statute are broadly worded] I would therefore hold that sadomasochistic activity is "other activity" within the meaning of the statute. Whipping a person with a belt, the actual activity involved in this case, is not "itself illegal." Nor do a swollen lip, large welts, and severe bruises constitute a serious injury within the meaning of Iowa Code section 702.18 (1983)" (309)

1990: (November 1) Dawn B. v. Eric B.

This was a child visitation case. Dad was an incurable sadomasochist and dope fiend; Mom doesn't want kinky Dad to visit the kid. The court found for the Dad, allowing visitation rights. It held: " The Court is of course concerned over the possibility of imitation by Ian of his father's sexual activities, which are highly abnormal. However, it would only be speculation to believe that father's sexual behavior is so compulsive that he might perform an abnormal sexual act during the very limited time that he has to spend with his son. The Court cannot base any decision on speculation or conjecture. Thus, there is no evidence that any threat exists of Father exposing Ian to any [*5] unusual sexual behavior or that he might fail to adequately supervise him. Absent proof of either of the @ 727 (b) requirements to limit visitation, Father is entitled to share in his child's life and enjoy normal visitation" (1990 Del. Fam. Ct. LEXIS 89, 4) Interestingly, the court found Dad's pot use to be more of a danger than his "highly abnormal" kinks.

1993: (May 28) (Hennepin County, MO District Ct)

Mistress Ayesha convicted of "running a disorderly house" for a now-legendary (at least in St. Louis as far as I can tell) clothespin and sawhorse act. She was accused of prostitution but defense counsel argued that for prostitution to occur "the actor must satisfy his or her own sexual impulses." (Seems like this standard if generalized would mean that a prostitute isn't doing anything illegal if she doesn't come, right?) Turns out that the disorderly house charge is more serious than the prostitution charge.

Highlight: "If Mistress Ayesha's laundry winds up falling off the line, blame it on South Lake Minnetonka police, who haven't returned those 16 clothespins that caused so much, uh, controversy in her recent trial." (Star Trib Sept 5 1993 3B).

(April 4th) LAPD raids the Dragonfly (Club Fuck).

Raid involved 30 cops, 10 cars, a helicopter and 2 fire trucks. (Apparently this thing is still in the courts here??)

(August 13) Leitner v. State (631 So. 2d 273)

Craven was brutally murdered. Leitner was convicted of the murder then released on appeal because the Court had not allowed specific evidence that might show consent into the trial -- in particular, a graphic s/m fantasy involving bondage, submission to a "straight" man, forced into a sex change operation, etc., written by Craven. The fantasy is reproduced for the delight of the court (and me :) in its entirety in the published case, and it is a highly recommended read. Anyway, the unspoken implication here is that a man who fantasizes about homosexual s/m has somehow consented to being brutally murdered. Although the court says technically that the journal entry established that someone else may have killed Craven during s/m sex. Still, the upshot is that if Craven is proven to be a perv then his death was coming to him, and prosecutors even played into this by providing evidence that Leitner and his pal Little were pervs. "The journal excerpt was essential to the appellant's defense. It suggested Craven may have desired to be involved, and [*279] may have been involved in voluntary sadomasochist sex when he was killed. If he suffered from these desires, then he might have sought out an amenable partner" who eventually killed him. That wasn't very amenable of him if you ask me.

1994: (July 29 Decided) People v. Georgia A. (NY Lay J Oct 27 94 25; 1994 N.Y. Misc. LEXIS 606)

Held that a pro-dom not having sex with her customer is not breaking the law. She was busted by an undercover vice cop who needed a spanking; she told him to get naked and get on his knees while she went to change into her leather corset and was busted while fiddling with laces in her bathroom.

(What's more the cop was wired but turned off his wire during the "transaction" and only turned it on to radio for backup).

Judge Jacobson sees through this flimsy bust: "I believe that Officer Fisher entered Ms. A's Apartment intending to participate in an arrest and nothing was going to deter him from that end result."

Highlights: "Ms. A. testified that she did not offer to exchange sex for money and that she did not enjoy sex all that much." "Her testimony was educational as well as entertaining [you go, Girl!] and provided an insight into an area of behavior which is not often talked about in public."

(December 29) People v. Murphy

Man goes to another man's house, is hancuffed, photographed, and "engaged in sexual acts described as bondage and sado-masochism," (1994 Colo. App. LEXIS 399, 1). Then he calls the cops who arrest the boyfriend. The defendant is convicted of sexual assault, but then the case is thrown back to the lower courts on appeal because the prior sexual history of the victim was not permitted at trial (according to the appeals court, the defendant should have the right to develop a case for a consent defense by determining in cross-x if the victim was gay).

This text © Ben Attias
Modified by: Ben Attias
Institution: California State University, Northridge
Modification Date: Tuesday, January 2, 1996
Modification Time: 1:28 PM

[HTML modified and posted by Ambrosio on 7-21-99 with the author's permission.]

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