Dear Readers,
The questions this week are thought-provoking lightning rods on essentially the Ford allegations against Judge Kavanagh. I had to pick two readers comments among many on the sexual assault/consent issues, but I will address others in future columns, such as teacher-student sexual consent and marital rape. At the writing of the column, we do not know if Dr. Ford will testify.
Dear Carolyn,
Your last Ask Carolyn was sparky and timely concerning sexual consent. I must write concerning the Kavanagh appointment to the Supreme Court and Dr. Ford’s allegations. Really, even if true, was this a sexual consent issue or an alleged simple assault (if not a mistaken identity or made-up)? She doesn’t allege she was raped or that he even took her clothes off (a swimsuit). What she alleges is that he grabbed her around the mouth to prevent alleged screaming. And, then she alleges his buddy pulled off Kavanagh. I haven’t heard that she had objected to him allegedly being on top of her, but I do believe a woman or a man has a right to say “no” at any time. That would include teens.
Of course, as I am writing this, she hasn’t even testified.
This is obviously political given the timing. Having been a teen, having had teens, isn’t this something that should have been handled by the parents then and there with the teens? The drinking is of concern, but certainly not unheard of at teen parties. No has said who the chaperone was? Whose house? Were the parents out of town and the teens partied? Were there any alleged bruises? No one seems to know yet.
Carolyn Answers,
This is a hot button, for sure.
Analyzing the worst case under North Carolina law, if Dr. Ford’s testimony is credible and believed, we would look at the following statutes: (The case would appear to be under Maryland law, which is similar.)
Misdemeanor Assault in North Carolina:
Overt attempt or act, with force or violence to immediately put a reasonable person in fear of immediate physical injury (2) or a show of violence.
First degree rape in North Carolina requires vaginal intercourse.
Second degree forcible rape in North Carolina requires vaginal intercourse.
None of the statutory rape provisions apply both because there is no alleged vaginal intercourse or the required age differences.
Sexual battery: sexual arousal or sexual gratification by sexual conduct by force and against the will of the other person. Class A1 Misdemeanor. (150 days in jail maximum and a discretionary fine.)
Is Dr. Ford a “reasonable person” under the law? We spent much time in law school understanding who is a reasonable person. A “reasonable person” is the hypothetical person in society who exercises average care, skill, and judgment in conduct, reasonably prudent person under the circumstances.
So looking at the known allegations: (1) Ford was voluntarily at a party of teens drinking; (2) She apparently went into a room with two male teens, at least one of whom was drinking; (3) She got on the bed with the male teen and let him get on top of her; so, far in the allegations she seems to be consenting. (4) Now, she wants it to stop, which is her prerogative. It did stop. It is what allegedly happened at the moments between her deciding to get on the bed, deciding to let him get on top, and deciding “no” that are in question. And, all of it probably happened quickly. Apparently, no chaperone or parent was told.
And, then there’s the timing. Why did Sen. Feinstein hold the letter?
Dear Carolyn,
I have two follow-up questions myself. [The first question is being saved for a future Ask Carolyn, as well as some of the historical comments concerning to give room for other views of readers on the hot topic of Ford and Kavanagh, so stay tuned.]
Let’s consider broader implications of consent. Since I first wrote you with the example of the female teacher who became pregnant by her 14-year-old student and subsequently married him after he became of age, the current headlines surrounding Judge Kavanaugh’s alleged sexual misconduct 35 years ago, which I hesitate to weigh-in on because it is so ridiculously partisan, nevertheless, brings me back to the overarching implications of consent and its legal implications.
I am left wondering why we don’t treat sexual assault including statutory rape in the same manner as we do domestic violence and child abuse particularly molestation. Which is to say that law enforcement gets involved even when neither the alleged perpetrator nor the victim or their legal guardian does not want to pursue the matter. It took literally centuries for society to implement and enforce laws which state that a spouse does not have the legal right to physically or sexually assault their spouse or child, zero tolerance for domestic violence even when the victim is either too afraid or too enamored with their abusers to press charges or even cooperate with law enforcement, and that anyone who is aware of abuse of a child is legally required to report it to authorities for investigation.
Yet, today, we are grappling with what to do about Dr. Ford’s (and possibly others’) decision to not report an alleged crime (though sadly it is doubtful that if it had been reported 35 years ago or even 15 years ago, it would have been treated as a crime), and that when she did report it first to her therapist and then to Sen. Feinstein, it was not investigated because she, the victim, refused to consent to it being reported as a crime.
I understand and staunchly support any victim’s right to refuse medical treatment including a rape kit. However, we don’t wait until a minor is “in a better state of mind” to investigate a suspected assault. If someone is sexually assaulted without their consent (the definition of the crime, yes, since children or mentally impaired or inebriated adults or heaven-forbid the dead legally cannot give consent), then a crime has been committed and should be investigated.
I know that some might argue that investigating suspected sexual assault against the wishes of the alleged victim is the equivalent of treating adults like children (or rather, in light of your explanation, a 15-year-old in the State of North Carolina).
A lot to grapple with, isn’t it?
- Anderson (with consent)
Carolyn Answers,
Ms. Anderson, you certainly reach for the hard issues that define our era of development as a society. Societies evolve, and it is incumbent upon the thinkers in society to make sure the right direction is followed.
Certainly, a woman’s right to say “no” must be protected, but we also in fairness have to ask on behalf of the wholesome men in our society that they be protected from a false or an exaggerated allegation. In this instance, as of my writing of this Dr. Ford is still not agreeing to testify. If she has important truthful information, she should testify and do it now. The timing is suspect. We have become a society of “pop-ups.” Weather stations frequently report “pop-up” thunderstorms. We have “pop-up” shops and boutiques, even one now planned on Elm Street in Greensboro for Wrangler. It seems like there is a “pop up” sexual allegation against most every Republican male being vetted for an important position.
Ms. Anderson, I would love your thoughts on this.
Send your questions on family law and divorce matters to Ask Carolyn at askcarolyn@rhinotimes.com, or 216 W. Market St., GSO, 27401. “Like” Ask Carolyn on Facebook and follow on Instagram and Twitter at “Ask_Carolyn.” Post questions for consideration for this column. Please do not put identifying information in your questions. Note that the answers in Ask Carolyn are intended to provide general legal information, and the answers are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need in your individual case. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by Ask Carolyn.
