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Sex and consent: A continuum from full consent to no consent

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When I interview candidates to work for me, I inform them that a passion for civil liberties heavily drives my choice of cases. That means that I have never rejected a client merely because s/he is accused of a heinous act, even when I strongly believe s/he has committed the alleged act. The allegations against my clients sometimes get very ugly.

Some of the most heinous allegations I have defended against are sexual offenses, not least of which is my client prosecuted for breaking into his grandmother’s home and raping her. As if that was not stomach-turning enough, I have had my stomach turn reviewing explicit photos in child pornography prosecutions, often depicting children well before puberty. Representing clients at the post conviction stage, I have read criminal complainant testimony of hours-long sexual assault terror by my clients at their own homes.

I have defended clients accused of putting their hands where they do not belong — short of penetration sex — and without consent, for sexual pleasure. I have defended alleged voyeurs.

I wonder how much less sexual assault there would be if we eliminated obscenity laws, to make people less afraid of turning to erotic photographs and films, hopefully as a safety valve away from committing sexual assaults. A flipside argument might be that experiencing such material might instill a false idea that women in real life are as willing to engage in sexual activity with the person as the paid women on the screen are with the paid actors they perform with. I tend to think that the safety valve is the more likely overall result.

Speaking of erotic films and photographs, the very reason that I added adult entertainment defense to my practice areas nearly a dozen years ago is my view that protecting the First Amendment rights of such material is a critical component of protecting everyone’s free expression rights. For my staff, only G-rated material passes before their eyes for sexually-related cases. My eyes see the rest.

People should be well-advised to beware of any sexual activity beyond fully-consensual activity in a committed relationship. Sometimes people delude themselves about whether the sexual activity is fully consensual. Consent usually is a continuum from full consent; to giving into pressure; to impairment by alcohol, drugs or sleep; to not consensual; to sex extracted by beating, weapons, threats of violence, or all three. Sometimes people cry rape not because there was a rape, but out of feeling used or betrayed, which highlights the risk of casual one-time sexual activity.

Where I practice criminal defense, having sex with a minor who looks to be over the age of consent and even presents a fake identification will not shield a person from a statutory rape prosecution. Propositioning a minor of a certain age level for sexual activity — even if there is no intention to carry out the act — can bring severe criminal consequences in the jurisdictions where I practice.

Thanks to former criminal defense lawyer/now prosecutor Ken Lammers for putting people on notice about the states with laws against sex by fraud (including sex on a promise of marriage), here, here and here.  

In short, anything short of fully consensual sexual activity between mutually consenting adults brings real risks under the criminal law. Although I will defend against such allegations, I will not condone such behavior.