Several interesting cases on the nature of marriage and the nature of consent have come up in the last week or two.
Along the Utah/AZ boarder one finds the Fundamentalist Mormon Church of Later Day Saints (FLDS). This group rejects the mainstream LDS rejection of polygamy, which was initially required by the Mormon Church as necessary for salvation. In other words, under FLDS, marrying multiple wives (and wives submitting their husbands) is mandatory, not merely permissible, as it is among many other religions (e.g., Islam) or among the secular Libertarians who see no reason to prohibit any form of union.
FLDS is typically held up by those who oppose polygammy as an example of why polygammy is bad and degrading for women. Not sure if they also reject polyandry (multiple husbands) or other forms of "group marriage" (cf. Heinlien's "The Moon Is A Harsh Mistress"). For many years, FLDS communities have lived in their own towns essentially operating by their own religious rules with the state authorities looking the other way. Recently, allegations of child abuse and accusations that church elders use coercive means to enforce their religious will have prompted state authorities to investigate and crack down on violations of law.
In 2003, the State of Utah passed a law making it a felony to take as a second wife a woman under 18 but older than the age of consent for marriage with parental permission. This law addressed the "serial marriage" approach adopted by the FLDS. Men would sequentially marry and divorce women under secular law, while remaining married under the tenants of FLDS and thus comply with the FLDS doctrines on polygamy.
Recently, Utah has indicted the current leader of FLDS (referred to by FLDS adherents as the Prophet) Warren Jeffs as an accessory to violation of this law (and, as near as I can gather, as an accessory to rape) for Jeffs' role in requiring a 14 year old woman to marry her 19 year old first cousin.
What is troubling in the case is that, by the complainant's own testimony, Jeff's contribution as an accessory appears to be arranging the marriage and advising the woman to submit to his choice of husband for the sake of her immortal soul. Certainly she felt considerable pressure to submit (a reason we have laws wrt statutory rape), and folks may dislike the spiritual advice Jeffs gave, but there is no allegation that he acted other than in his capcity as spirtual advisor. Perhaps evidence will emerge that there was an implied physical threat or other form of implied coercion beyond "God demands this of you." But none has emerged so far. Nor has the state charged the 19-year old husband.
The difficulty is that, if Jeff's invovlement amounts to urging a particular match and he is held an accesory because he used his moral authority to persuade a minor to enter an abusive marriage, how far out does this principle go? Does it apply to a Catholic priest who urges a new bride to stay married because the Church rejects divorce? Does it apply to those communities where arranged marriages are common? Is age the deciding factor? Because while the girl in question was 14, absent the 2003 law, the marriage would apparently have been legal with her parents permission.
It is clear that Utah and others wish to prosecute Jeffs directly because he is the leader of this sect and his conviction, rather than the conviction of the husband who committed the alleged crimes under Utah law, will have broad impact.
The issue is not whether one agrees with Jeffs, or whether the marriage was or wasn't abusive. I'm happy to say that everything I've heard about the FLDS makes me glad I'm not one of them. But as a member of a minority religion regarded by many as Patriarchal, I find the effort to extend the accessory charge solely on the basis of the coercive force of religion (i.e., "you will burn in Hell if you don't") troubling.
Visitation Rights For Gay Marriage Divorces
Turning from one form of controversial marriage to another, we find today's ruling in the VA case of Miller-Jenkins v. Miller-Jenkins. Here, Lisa Miller and Janet Jenkins originally lived together as a couple in Virginia. They registered as civil partners under VT law, although were still VA residents. Lisa, with the support of Janet, had herself artificially inseminated and gave birth to a daughter (referred to as IMJ), who was born in VA. The couple then moved to VT and established residence in VT. A few months later, the couple broke up and filed to have the civil union disolved and parental custody rights awarded. The VT court made an initial award of physical custody to Lisa with visitation rights to Janet, pending resolution of the case. Lisa thereupon returned to VA, refused to honor the VT custody order and filed in VA to establish herself as biological mother and sole parent of IMJ. Janet filed a motion in VT to quash Lisa's effort to evade jurisdiction. Lisa, in return, filed a motion for dismissal on the grounds that the VT court no longer had jurisdiction.
The VT Supreme Court determined that VT courts had proper jurisdiction, and issued an order requiring Lisa to honor the VT family court's determination of visitation or face contempt. Janet sought to have the VT court order enforced in VA under the Parent Kidnapping Prevention Act (PKPA). The lower court declined to enforce the VT Court's order, finding that under VA's Marriage Affirmation Act ("MAA") -- which prohibits recognition of same sex relationships or the extension to same sex couples the benefits of marriage -- and the Uniform Child Custody Juristiction and Enforcement Act, the VA court had jurisdiction. The VA court held that PKPA did not apply to same-sex unions and, to the extent it did, VA courts were prohibitted by the MAA from applying it because the Defense of Marriage Act ("DOMA") explcitly permitted a state law regarding the definition of marriage to preempt federal law in this instance.
The VA Court of Appeals (VA COA), which is the interim court in VA (the VA Supreme Court is higher, but need not accept a request for certiori), over-ruled the lower court and held that PKPA applied. The VA Court of Appeals analyzed PKPA and held that it applied to all child custody situations, not merely marriages. Further, it found that DOMA did not apply and that the MMA therefore did not apply and, to the extent it did, was preempted by the PKPA. The VA COA then deferred to the VT Supreme Court's determination that VT had jurisdiction, and ordered the lower court to apply PKPA and therefore enforce the VT court orders.
All in all, a well written decision doing what judges are supposed to do: apply the friggin' law using well known tools of statutroy construction. The VA COA did note the narrowness of its decision, and -- to my great relief -- avcoided all the pious crap about strong feelings and respecting views and blah blah that have become all too de rigour in the "Gay Marriage Cases."
I expect an appeal to the VA SCT. If they are smart, they will decline to hear the case. An ultimate appeal to the USSCT is possible, since it raises a federal question. But this is precisely the sort of federal question the USSCT usually likes to see play out in different courts before stepping in. There may be an effort in Congress to amend PKPA to create a DOMA-like exception, but I regard that as enormously unlikely to even get a hearing in D controlled Congress. No doubt conservatives -- assuming the VA SCT does not reverse -- will try to make this an issue in '08.
Rape, Withdrawal of Consent
Last, we get to a decision right here in MD from the MD Court of Appeals, which actually is the highest court in MD. The issue presented is whether, under MD law, a woman who has given consent for sexual intercourse may withdraw that consent post-penetration, so that continued sexual activity constitutes rape (assuming the validity of the initial consent). The MD COA held that it was bound by a 1980 decision holding that a woman who has given consent cannot withdraw consent post-penetration. It is useful to note that the MD 1980 decision has been consistently criticized by scholars and other courts. The decision is also troubling because since the decision in 1980, the MD legislature has replaced the common law definition of rape with a statutory definition of rape. The Court held, however that the legislature had not intended to overrule the previous decision.
The facts of the case may clarify both why the Court reached this result and the difficulty in crafting a legislative remedy. As the Court noted, the witnesses in the case (the complainant, the defendant, and a co-defendant who plead guilty to rape) all gave fairly consistent accounts of the events. This eliminates the question surrounding the findings of fact and allows a focus on the legal question.
The victim, "Jewel," a 19-yr old college student, was with a friend at a McDonalds when they met two 16-yr old boys named "Mike" and "Baby." Mike and Baby asked the pair to drive them to a place where Mike and Baby believed a party was taking place. Jewel agreed, but her friend declined. Jewel drove Mike and Baby to the address but there was no party. Meeting other friends of Mike and Baby, the group smoked marijuana and discussed getting a room at a local hotel to have sex, but nothing came of these discussions. Eventually, Mike and Baby asked Jewel to drive them home. During the course of the drive, both boys became increasingly insistent that Jewel should have sex with them. Jewel made no answer to these repeated overtures, parked the car, and informed the boys they needed to leave. Baby exited the car. Mike grabbed Jewel, forced her into the back seat, and proceded to rape her. Mike then exited the car and informed Baby it was "his turn."
Baby opened the back door and asked Jewel if she were willing to have sex with him. Both Baby and Jewel agree that Baby specifically said "I don't want to rape you" and asked if he had her permission. Jewel responded that as long as Baby stopped when Jewel asked him to stop, she would have sex with him. Baby attempted penetration in a way that caused pain to Jewel, who asked him to stop. Baby stopped (either immediately or, as described by Jewel, "after about four or five seconds") and withdrew. There is no evidence that Baby actually ejaculated, and his withdrawal and subsequent leaving the scene immediately thereafter with Mike are agreed to have been in response to her request rather than because he had completed the sex act.
Mike plead guilty to rape and testified at the trial against Baby. Baby maintained that the sex was consensual. Jewel testified that she felt coerced and that she feared to say no to Baby, although she agreed that Baby made no explicit threat.
During deliberations, the jury submitted a note asking whether, once a woman has given consent to a sex act, and the man has penetrated her, the woman may withdraw that consent. The judge, deciding the question was ambiguous, repeated the standard jury instruction on rape. The jury convicted and Baby was sentenced to 15 years, 5 in jail and 10 on probabtion.
On appeal, the MD COA held that the jury note indicated that the jury convicted on a theory of post-penetration rape rather than on a theory that consent had been coerced. It further held that, under previous law, the answer in MD to the jury question is that a woman may not withdraw consent once pentration has occured. It therefore ordered a new trial.
I think the court flubbed the analysis of legislative intent. True, there was no evidence the legislature explicitly intended to overturn the previous decision. But the Legislature's decision to replace common law rape with a statutory definition derived from a uniform code should have been taken as an effort to replace the common law and that the interpretation of similar statutory language from other districts would have been useful.
The problem is amended (albeit not for purposes of this case) by recourse to a direct legislative cure. However, as the facts of the case illustrate, it is difficult to define what is meant by "sex" and "consent." For example, is it sufficient Baby genuinely believed that Jewel had consented -- especially if the jury found credible that Baby was unware that Mike had raped Jewel? Or should her testimony that she felt coerced be sufficient to establish coercion? Is a delay of "4 or 5 seconds" in compliance sufficient to constitute post-penetration rape, or is there some "rule of reason" that the defendant must have a chance to physically hear and respond to the withdrawal of consent? Is evidence of diminshed capacity relevant either to the question of granting consent or to the perception of consent?
These are, of course, the reason why we have juries, to determine questions of fact. But juries also require legal guidance. The law should try to address these things, including a standard jury instruction to avoid confusion.
For myself, I am happy with a rule of strict liability. That is to say, consent must be actual, and a mistaken impression of consent is no defense. I am also happy with post-penetration withdrawal. Heck, I'm even willing to abide by post-coital withdrawal of consent if, on reflection, the woman determines that she was not, actually consenting (although I think some sort of time limit should be imposed). I am also comfortable with a rule that diminished consent is automatically considered non-consent. i.e., if a woman has been drinking or using drugs and, as a consequence, has impaired judgement, she may, after the fact, make both a civil and criminal complaint of rape.
My approach on this is fairly utilitarian. There is small loss if a man decides to forego what he believes is a consensual sex act when consent is not actually present. Further, the decision whether to risk an eronious determination on consent rests entirely with the man. If he is in the least uncertan that his partner is consenting willingly, or is operating under diminished capacity, he merely takes himself in hand (as it were) and says good night. By contrast, if the man is mistaken and consent is not, in fact, freely given, the fact that the man honestly believed the women to be consenting does not remedy the harm done. Nor do I beleive that this constitutes a violation of the general rule in criminal law that a crime requires intent. If the presumption is established by law, then all that is required is intent to commit the act, not the classic "malignant and abandoned heart" traditionally required to create the mens rea of guilt.
to the extent that the man committed an "honest mistake" in that it was reasonable to assume tht consent was given when it was, in fact, not, that diminished level of culpability can properly be reflected in sentencing/damages.
Similarly, it may be argued that some women will suffer because men who would otherwise accept an opportuniy for consensual sex will not do so because of the "chilling effect" of the fear of liabilty. Again, however, this potential loss seems relatively minor when compared to the damage caused by permitting a mistake with regard to consent to go undettered. While it may impact some forms of social behavior (such as the use of alcohol to facilitate opportunities for consensual sex), this can hardly be considered a significant social detriment. To the contrary, to the extent fear that consent is not genuinely given, or may retroactively be withdrawn, causes enhanced responisbility in sexual behavior by encouraging men to seek intercourse only after they have established a sufficeint level of trust that they are confident that consent is both freely given and will not be retroactively withdrawn, it may be seen to have positive social benefits.
To facilitate and encourage this sort of pair bonding, it may be worthwhile to establish that marriage or other form of registered civil union establishes a rebuttable presumption that sex is consensual. It is reasonable to assume that any woman entering into a marital relationship would anticipate that there would probably be sex involved at some point. This should not, of course, be mistaken for a return to the now discarded doctrine that marital rape is a legal impossibility because marriage provides automatic consent. Rather, it merely would create a rebuttable presumption of consent. Of course, this would require that marriage be extended to homosexual couples as well, or they would be denied a significant legal benefit.
Such a system is not perfect, of course. No system ever is. But when you get down to it, the real question is who bears the bruden for determining whether consent is freely given. There is no a priori reason that we cannot place the entire burden with the man, given the nature of the act and the balancing of harms and ability to prevent a mistake by acting under false impression of consent.
A modest proposal, perhaps. But as with all such, hopefully providing some room for thought outside the traditional confines of the debate.