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New York lawmakers seek major expansion of state power to criminalize sexual relations

Defense attorneys alarmed by proposals to make using 'deception' to get sex a crime, expand definition of "unwanted touching," and make drunk sex legally risky.

Updated: May 1, 2021 - 3:47pm

The Facts Inside Our Reporter’s Notebook

Due to pressure from activists and political figures including President Joe Biden, colleges have made it harder for students accused of sexual misconduct to show they obtained "consent" from their partners.

Lawmakers in New York are now looking to expand this effort to criminal courts.

Bills in the state Assembly (A6540) and Senate (S6200) would nullify consent if it were obtained through "deception, fraud, concealment or artifice," meaning a person who told a falsehood or incomplete truth in the pursuit of sex could be prosecuted for sexual assault.

Assembly sponsor Rebecca Seawright portrayed the measure, which would define consent for the first time in New York penal law, as needed to "hold predators like Harvey Weinstein accountable." 

A press conference outside her office featured two women who testified against the disgraced Hollywood producer, Tarale Wulff and Dawn Dunning, according to ABC News. Since Weinstein defended himself by claiming "that he felt confused" about the definition of consent, "there will be no more confusion" under this legislation, Wulff said.

The Senate version, sponsored by James Sanders, invokes sexual assault trials for Weinstein and entertainer Bill Cosby. Jurists in both proceedings told jurors to use their "common sense" in defining consent, which resulted in a mistrial for Cosby, an extensive "Justification" section claims.

"Failure to define consent creates disparate outcomes in convicting sexual predators as each jury grapples to create its own definition with no guidance from New York State's statutes," the Senate version reads. "This vital concept cannot be left to chance."

New York criminal defense attorney Scott Greenfield faulted their wording as being unrealistic "in the real world."

"If a guy puffs his occupation and income, it's deception," Greenfield blogged. "If a woman had breast augmentation surgery, or reduction surgery for that matter, it's deception. And, of course, there's the classic, 'will you love me forever?'"

He asked rhetorically whether "artifice" is "just the normal game of romance, putting on one's best look to attract someone with whom you want to have sex," instead of rape.

Reason editor Elizabeth Nolan Brown deadpanned that the legislation would criminalize being "less than fully truthful with sex partners." 

She warned it could "open the floodgates" of prosecutions and civil suits against women for "lying about contraceptive use or menstrual cycles, and men for lying about having a vasectomy," or simply hiding unpleasant facts about one's financial status.

Greenfield told Just the News he wasn't aware of criminal law groups lobbying bill sponsors behind the scenes. Both versions remain in committee. 

The New York State Association of Criminal Defense Lawyers is watching the bills, which were introduced March 19 and April 15, but still discussing "how vociferously we need to be opposed," President Alice Fontier told Just the News. The group hasn't contacted sponsors yet to raise objections.

Invoking Weinstein to sell the legislation is "wildly inappropriate because there aren't very many" offenders who use "abuse of power" to the extent that he did. Weinstein's crime is also not squarely addressed by the bills, she said.

The bill language is so poorly drafted that it will lead to "selective prosecution" and racially biased results, according to Fontier: A person could be guilty "a thousand different ways."

Being branded a sexual offender is a "life-altering event that can't be taken back" even if the defendant's conviction is overturned, she said. "You don't get that time back."

The New York Civil Liberties Union, the ACLU state affiliate, didn't answer a query on whether it was advocating on the bills.

Sponsors of both bills did not answer queries seeking their response to criticisms of the legislation's scope. Only one cosponsor, Assemblyman Phil Steck, responded. He said he couldn't comment because he wasn't the sponsor.

Express regret, make your partner a criminal?

Fontier's group is more worried at the moment about other sex-crimes bills that have passed their Senate committees and await floor votes, she said. 

One (S452) would negate sexual consent when a "victim" is under the influence of alcohol, drugs or any substance "to a degree which renders such person temporarily incapable of appraising or controlling his or her conduct." 

Their sex partners could be prosecuted if they knew or "reasonably" should have known about their partner's condition at the time. Current law requires sex partners only be conscious and aware of the nature of the sexual activity for consent to be valid.

The bill would "make a lot of common scenarios potentially criminal," Fontier told Just the News. It passed the Senate last year so it was already on their radar. (Its Assembly companion, A5519, is still in committee.)

Another bill (S842) would dramatically expand the legal definition of "forcible touching" of sexual or "intimate" parts of the body. 

Any "unwanted" touch that was made "intentionally, and for no legitimate purpose," could be prosecuted. Current law requires prosecutors to show the accused wanted to "gratify their sexual desire or to degrade or abuse the victim."

Fontier wrote an essay for Empire Report, a New York politics website, arguing the legislation would destroy the lives of people for "accidental or mistaken conduct" that leaves them branded for life as sex offenders.

"Even if an individual is conscious and capable of communicating consent, their partner … could still be arrested, prosecuted, and ultimately found criminally liable" under the constantly shifting "reasonable person" standard, she wrote about the intoxication bill. 

The sexual initiator must "guess and gauge the legal competency of their partner" who has taken any substance, an inversion of criminal law principles, she argued. "In other words, you are expected to know what is in another person’s head," she said. It would criminalize sexual encounters "when one person later regrets their actions," she added.

The unwanted touching bill would eliminate the "mental state" required to commit a crime, which is a "bedrock principle of our criminal code," Fontier wrote. The bill specifically mentions touching "on a bus, train, or subway car."

It would criminalize every incident where someone was "bumped, jostled, or pushed" on transit and "accidentally touched someone in the wrong place as a result," she claimed.

Assemblyman Kenneth Zebrowski, who cosponsored that chamber's companion bill on unwanted touching (A208), told Just the News the criminal defense group was wrong that the legislation removes mental state, known legally as mens rea.

"It doesn't make any unwanted touch" like a subway bump a crime, but simply removes the narrow "purpose" of the touch in current law — sexual gratification or degradation.

"You still have to do it intentionally and for no legitimate purpose," Zebrowski said, explaining that a person who fell and reached out to steady himself on another person's groin, for example, might have a legitimate purpose.

"There shouldn't be a loophole" where the defendant can admit to intentionally touching sexual parts but argue the prosecution hasn't shown it was sexually motivated, he said.

The Senate and Assembly bills on intoxication and unwanted touching have a combined 29 sponsors and cosponsors, but besides Zebrowski, only one responded to Just the News queries.

A spokesperson for state Sen. Zellnor Myrie said the intoxication bill wasn't his, but didn't respond when asked what the spokesperson meant.