Proposed New Consent/Intent Standards for Sex Offenses Will Result in Wrongful Convictions

By Alice L. Fontier | April 12, 2021

For years, toxic masculinity has been allowed to thrive or been dismissed as “locker room talk.” Our highest elected officials have benefited for far too long from this culture of silence. The time to change this culture throughout our State has long since passed. The “Me Too” movement has rightfully empowered more women to speak out about the mistreatment, abuse, and violence that we have suffered in silence for years. The legislature is right to look for ways to address these issues. However, we must be careful not to overuse the heavy weight of the criminal legal system in an attempt to address these concerns.

Last year the New York Senate voted to pass legislation and they are now considering another bill that are both well intentioned and seek to address sexual violence. Unfortunately, this legislation is deeply problematic and would lead to over criminalization, and the destruction of lives by branding people as sex offenders. Make no mistake, crimes of sexual violence are reprehensible and must be treated with the utmost seriousness. For this precise reason, the laws addressing them must be carefully drafted and not sweep in accidental or mistaken conduct which result in life-long branding as a sexual predator. The legislation at issue in the Senate does not meet that standard.

The Senate bill, S452, is intended to make it easier to prosecute certain sex offenses including rape and sexual misconduct. Any legislation designed to protect the “vulnerable” – in this case intoxicated individuals – is laudable. However, this legislation contains a concerning standard for criminal liability that conflicts with due process. The standard is simply too vague and will likely result in arbitrary prosecutions of consensual encounters. Even if an individual is conscious and capable of communicating consent, their partner, referred to in the bill as the actor, could still be arrested, prosecuted, and ultimately found criminally liable. Even worse, the onus is on the actor to guess and gauge the legal competency of their partner, even if the partner confirms consent. In other words, this legislation defies criminal law jurisprudence and principles that look to the mindset, (legal jargon “mens rea”) of the actor and instead requires that the actor interpret both the mindset and capability of the so-called victim, regardless of the actor’s intent. The grounds for this capability determination are not found anywhere in the legal principles that address an individual’s capacity to give consent. This new bill allows any individual to now be couched as legally incompetent of giving consent.

The bill requires a person to determine if the other person is intoxicated or under the influence of any drug to the extent that the person is “temporarily incapable of appraising or controlling his or her conduct[.]” Thus, a jury must now determine whether “a reasonable person,” in and of itself a precariously and constantly challenged standard, in the actor’s situation “would have understood” the extent to which consumption of alcohol or drugs was impacting the other person’s decision making. In other words, you are expected to know what is in another person’s head.

This standard, which guarantees more wrongful convictions and court challenges, is not even necessary. New York’s current statutory framework adequately addresses a person’s intoxication whether voluntary or involuntary. Lack of consent includes a mental incapacity or a physical incapacity. It does not require both at the same time. A person’s intoxication whether involuntary or voluntary provides no defense if the intoxication rises to the inability to communicate “no.”

A conviction for a serious sex offense is life ending – no one who has been convicted and been branded a sex offender can expect to live anything approaching a normal life again. This bill could impose that penalty in a wide array of situations in which no meaningful criminal intent was ever formed, nor any harm meant. This bill would criminalize a sexual encounter when one person later regrets their actions. That simply cannot be the law, the stakes are too high.

Similarly, S842, now in Senate committee seeks to remove the “intent” element from the crime of forcible touching, making any “unwanted” touch a crime. It is a bedrock principle of our criminal code, that a person must have the requisite mens rea to commit a crime. The proposed changes to “forcible touching” seek to eliminate any required mental state. In plain language this means that you are guilty of this crime – in some instances making you a registerable sex offender – if you touch a person’s sexual or intimate parts by accident or mistake. The proposed change specifically includes any, and all, contact on a subway or bus. If this bill were to pass it would be a crime if you were bumped, jostled, or pushed and accidentally touched someone in the wrong place as a result.

The New York State Association of Criminal Defense Lawyers, the state’s largest criminal bar association comprised of both private and public defense attorneys, strongly opposes both of these bills. However well-intentioned this legislation may be, the end result would over criminalize and stigmatize far too many people while also serving to eviscerate the basic underlying principles of our criminal statutes that attempt to ensure innocent individuals are not wrongly accused and convicted.

Alice L. Fontier is President of the New York State Association of Criminal Defense Lawyers.