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November 8, 2016

Submitted draft proposals for revised MPC rape provision and for elaborate campus sexual behavior code

I am pleased to report that I have now received four proposals for a new MPC rape provision and also one proposal for a campus sexual behavior code. 

The MPC rape provisions are short enough to reprint here for collective consideration before the Oliwood Senate convenes to debate its terms.

MPC § 213.1 – Proposed Revisions (proposed by Oliwood State Senator Tyler Aust)

(1) Rape. No person, irrespective of gender, shall perform sexual intercourse with another when any of the following applies:

(a) that person knowingly fails to obtain the other’s explicit or implicit consent;

(b) that person recklessly obtains the other’s consent under threat of substantial bodily injury;

(c) the other manifestly withholds consent from that person; or

(d) that person, through the stealthy or deceptive administration of an intoxicant, purposely impairs the other’s ability to manifestly withhold consent.

(2) Within the meaning of Division (1) of this Section, “sexual intercourse” refers to any erogenous activity, involving two or more persons, that causes bodily penetration in furtherance of sexual fulfillment.

(3) Inasmuch that Subdivision (1)(a) of this Section requires, the existence of implicit consent shall be determined upon a jury’s consideration of the totality of the circumstances.

(4) A violation under Division (1) of this Section constitutes a felony of the second degree, unless such a violation accompanies the death of the victim – in which cases the offense qualifies as a felony of the first degree.

MPC Rape Provision Revision (proposed by Oliwood State Senator Abby Graves)

(a) Rape. — Any person who commits a sexual act upon another person by—

(1) Using unlawful force against that other person;

(2) Using force causing or likely to cause death or grievous bodily harm to any person;

(3) Threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, substantial economic harm, kidnapping, or any detrimentally life-altering consequences;

(4) Using deceptive or fraudulent self-representation tied to fictitious offers of aid or economic gain;

(5) First rendering that other person unconscious; or

(6) Administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct;

Is guilty of rape.

(g) Definitions. — In this section:

(1) Sexual act. —The term “sexual act” means—

(A) Contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or

(B) The penetration, however slight, of the vulva or anus or mouth, of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(2) Sexual contact. —The term “sexual contact” means—

(A) Touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or

(B) Any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body.

(3) Bodily harm. —The term “bodily harm” means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.

(4) Grievous bodily harm. — The term “grievous bodily harm” means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose.

(5) Force. — The term “force” means—

(A) The use of a weapon;

(B) The use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or

(C) Inflicting physical harm sufficient to coerce or compel submission by the victim.

(6) Unlawful force. — The term “unlawful force” means an act of force done without legal justification or excuse.

(7) Threatening or placing that other person in fear. — The term “threatening or placing that other person in fear” means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action.

(8) Consent. —

(A) The term “consent” means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent.

(B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear or under the circumstances described in subparagraph (C) or (D) of subsection (b)(1).

(C) Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.

 

UPDATE: Abby has revised here proposal and it is here for downloading:  Download MPC Rape Provision Revision (1)

 

2016 MPC Rape Provision: 210.1 (proposed by Oliwood State Senator Matthew Carpenter)

1. Rape is defined as the penetration of any orifice without the express written consent of both parties.

2. Written consent is required before the commission of any sexual encounter, to acquire written consent the parties must:  a. Write out a contract which clearly defines both parties consent to any and all of following:

i. Any sexual contact which involves the penetration of any orifice.

ii. Any sexual contact that a person makes upon themself by means of force, threat, or coercion exercised by another, which results in the penetration of their own orifice.

3. Parties must acquire written consent in the form of a contract before each act of sexual conduct referenced in section (2)(A), unless otherwise stipulated in the contract.

4. Consent contracts must be:

a. consented to by both parties, and

b. signed in the presence of a state marshal.

5. In writing the consent contract, parties may: 

a. Be as specified as each party deems fit, or may utilize a state contract provided by the Attorney General’s office.

6. No person may acquire the express written consent of another by means of force, threat, or deception.

7. Once the act of rape is committed, the victim retains 30 days to report the incident to the appropriate authorities.

8. No rape may be falsely reported.

9. Persons 12 years and younger may be found guilty of rape, but they may be found guilty of some lesser sexual offense.

Sentencing: MPC Rape Provision 210.2

1. If any sexual conduct mentioned in section (2)(A) occurs and is not preceded by the signing of written consent, then the actor who perpetuated the sexual conduct is guilty of rape which is a felony of the 2nd degree.

2. Violation of section (4) of this provision is a felony of the 2nd degree.

3. Violation of section (6) of this provision is a felony of the 3rd degree.

Definitions: MPC Rape Provision 210.3

a. Force – is defined as any exertion of effort to enter into the orifice of another.

b. Threat – is defined as making the victim believe they may come into bodily harm in any attempt to refuse the perpetrators sexual advances.

c. Coercion – is defined as the altering of ones state of mind through any illicit means such as intoxication, persuasion, bartering, compensation, deprivation, manipulation, or any activity which may alter the conscious of the victim in any unusual way.

d. Touch – is defined as contact which is made upon a person by means of another’s body or by means of any agent which is explicitly under the other person’s control.

 

213. 1 Rape and Related Offenses ((proposed by Oliwood State Senator Ayesha Cotton)

(1) Rape- Any person who commits a sexual act with another is guilty of rape if:

a) The person uses unauthorized force against the other person

b) Threatening of bodily harm, death, kidnapping, or any harm to another whether through verbal or nonverbal means

c) Gained control of a person’s conduct without their knowledge by means of drugs, intoxicants or any other means to prevent resistance.

d) The person is unconscious

e) The person is less than 13 years old

f) The person did not give an affirmative consent

g) The person’s family, career, or personal interests were threatened

Rape is a felony of the second degree unless (a) in the course the actor inflicts serious bodily injury upon the person, or (b) the victim was had not previously permitted any sexual acts with the actor, in which case the offense is a felony of the first degree.

(2) Any person who knowingly falsely accuses a person of one of the acts stated in 213.1 (1) is guilty of making a false report which will result in a misdemeanor in the fourth degree.

(3) Definitions- For purposes 213. 1 the following terms are defined as:

“Sexual Act”-

(a) contact between the penis and the vulva or the penis and the anus, or the vulva and the vulva, or the penis and the penis and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object

(b) Contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; with intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person

“Bodily Harm”

(a) That involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty

“Affirmative Consent”

(a) A verbal “yes” that has given through coercion or threats and maintains throughout the duration of the sexual act.

The campus sexual behavior provision is quite lengthy and is therefore attached in full. I am hopeful its authors will not object to this excerpt intended to capture key provisions: 

Proposal to The Ohio State University Board of Directors (proposed by Matthew Harris and Maggie O’Shea)

Following a complete investigation, the board shall make a final decision based on the preponderance of evidence from the trial and recommendations of the sexual misconduct investigative team.

If the board finds that the accused committed an act of non-consensual intercourse against an individual, the accused shall be permanently expelled from The Ohio State University.

If the board finds the accused guilty of other forms of sexual misconduct, the board has discretion to levy proper sanctions against the accused at their discretion. Sanctions include but are not limited to: 1. Suspension; 2. Scholarship Revocation; 3. Appropriate Sexual Conduct Workshops, 4. Banishment from school activities, 5. Mandatory Community Service, 6. Counseling....

Non-Consensual Sexual Intercourse: Any sexual penetration, however slight, with any body part or object, by any individual upon another this is without consent and/or by force or coercion. Sexual Penetration includes but is not limited to: vaginal penetration by a penis, object, tongue, or finger; anal penetration by a penis, object, tongue, or finger; and oral copulation (mouth to genital contact or genital to mouth contact); no matter how slight the penetration or contact.

Download Sponsor Testimony - Harris and O'Shea

In addition to being grateful to the drafters for crafting these proposals for posting and pre-class and in-class discussion, I am hopeful that the drafter can be sure to address which of the acts discussed in the rape survey (results here) would qualify as "rape" or as "non-consensual intercourse" under the definitions here provided.

November 8, 2016 | Permalink

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