Legally Speaking


Adult Talk

By Karen L. MacNutt,
Contributing Editor

Bill Cosby is a huge disappointment.
I admired his public persona. His clean and insightful humor was refreshing in a world of comics who rely upon potty talk to get laughs. It is a shame that the man behind the character he portrayed, had feet of clay. You cannot always judge a book by its cover.
If everything he was accused of doing was consensual, his acts were still reprehensible. He used his fame and reputation to sexually exploit others.
No matter who you believe, the case raises interesting questions about social norms, exploitation, stupidity and self-defense.
For too long the social norm for too many men has been, “I only have to be as good as I have to be.” For the male, the world was filled with potential conquests to be boasted about to other men in much the same way they might boast about some fish they claimed to have caught. As the hunter, the male could take all the liberties he could get away with so long as he did not use force. Too often the “woman’s liberation” movement was a male excuse for exploitation.
What is socially tolerated has shifted over the last 30 years as more women achieve positions of financial security and power within our society. Laws governing sexual harassment in the workplace have created a minefield for men who try to exploit the women they supervise or work with. No women should put up with offensive conduct by male colleagues. Often crude sexual advances are not acts of affection but are acts of domination, a form of bullying, needed to reassure an insecure aggressor that he is superior to his victim. Submission is not a way to advance in the job place or stop the offensive conduct.
To be fair to men, not every sophomoric or boorish antic should result in a man’s losing his job and being socially ostracized. That is especially so if the offense occurred when the man was relatively young or a time in the distant past. Everyone has done something in his or her life which is embarrassing in hind sight. Trial and error is part of the human mating dance.
The woman’s initial reaction (self-defense) to unwanted male attention (flirting as opposed to gross seduction or rape) should be to make her displeasure immediately known in clear terms. “I’m sorry, I don’t date married men… I don’t get involved in relationships at work…. Please don’t do that (said in a commanding voice not a pleading voice)… I’d rather kiss an eel…” Most men’s egos are fairly fragile. They don’t like rejection and will often back off. In some situations, trying to be polite is ineffective.
A rejection, if not bluntly stated, could be taken as an invitation to be bolder in what the male sees as a passionate seduction. If the offensive conduct persists, especially if it occurs in the workplace, the woman should file a complaint in writing to the company’s human resource office. In small companies this may not be possible. In that case, you should probably look for a new job before things get too bad. In most, if not all, states there are laws against sexual harassment in the workplace and a complaint can be filed on the criminal side of the local court.
Unfortunately, filing a complaint could result in the company looking for an excuse to terminate you even though such retaliation is illegal. You may, therefore, want to look for other employment (or work in another department) before filing a complaint so you are not leaving with a bad efficiency report. Some jobs are so unique and important to your advancement, that looking for another job is not an option. Jobs in the entertainment industry tend to be such jobs. In that case, you have to fall back on your wits. For the man, it is all about the chase. Promises to do things in the future will not be kept. Knowing that, and knowing that such men trying to confirm their manhood by a large number of “scores,” may help you come up with a strategy to address the problem.
Intercourse between two people is illegal if it is not consensual. It is the crime of rape.
Some men fantasize that women who fail to fight back are consenting. Under the law, failure to object is not consent. A woman who is passive may be acting out of fear. Someone who acts, or fails to act, out of fear is not consenting. Someone who acts, or fails to act, out of coercion or mental bullying, is not consenting. Someone who submits because her future employment, income, or advancement seems to be conditioned on “granting” sexual intimacy, has not consented. Consent requires a knowing and voluntary act which is not the product of mental, economic or physical threats.
When there is a disparity in power between the individuals, there is an inherent coercive effect. Advances made by teachers towards students, employers towards employees, caretakers towards wards, doctors against patients, or clergy against parishioner all have an element of coercion and breach of trust which makes the act especially inappropriate.
Likewise taking advantage of someone who is drunk, unconscious or is mentally incapacitated is not only illegal but is also vile. A person who is mentally impaired lacks the capacity to make a knowing consent. In the same way, the crime of “statutory rape” which provides that a child under a certain age is incapable of consent, is based upon the belief that the child lacks sufficient judgement due to age to give knowing consent.
Most laws dealing with sexual assault are now gender neutral. Men can sexually assault women or other men. Women can sexually assault men or other women. Inappropriate sexual behavior is not confined to any one group.
The term “sexual assault” covers a wide range of behavior, some very serious while others are just annoying. Because of our federal system, each state, and the federal government, can define the term as it applies to the laws within their jurisdictions.
An assault, by common law definition, is simply putting someone in fear of an unwanted touching. The touching itself is a battery. Depending upon the state and circumstances, an unwanted kiss could be a “sexual assault.” An unwanted touching, be it a light rubbing or a coarse groping, a pinch or pat could be a sexual assault.
Differences in social norms can sometimes cause problems. We all have an imaginary bubble around us which is referred to as our zone of comfort. When someone gets too close to us, we feel uncomfortable. Where that zone of comfort ends, however, is different among different ethnic and cultural groups. In one group, a light kiss on the side of the cheek, or a quick embrace or hug is acceptable behavior to show neighborly friendship. In certain sporting activities a pat on the rump has become an acceptable acknowledgment of a job well done.
If you are on the receiving end of one of these tokens of friendship, and you find it offensive, you should politely let the other person know that you are uncomfortable with his or her behavior. If you are on the giving end of such conduct, you should refrain from such conduct until you are sure it will be received without offense.
The most serious sexual assault is rape. The definition of rape can vary from state to state. The common law definition is: unlawful sexual intercourse between a man and a woman. The conduct is unlawful if either party has not consented. Traditionally, rape required the male to penetrate the female. A more modern definition is gender neutral and covers any act by which any body part or object is, without permission, inserted into the body cavity of another. Thus, an unwanted “French kiss” might, by some states, be considered rape.
A major change in the traditional definition of rape involves married people. Until the mid-1970s, it was thought that a man had the legal right to have sex with his wife anytime he wished, with or without her consent. That is, a man could not legally rape his wife. By 1993 that had changed. A man can now rape his wife under the laws of all states if she does not willingly consent to his advances. In some states a lack of consent to intercourse is all that is needed to show rape between married partners. In other states, threats or coercion is required.
A good relationship is based on mutual respect. Someone who disregards the feeling of his or her partner is abusive and not a good partner. Predators, both male and female, are good at intimidating their victims emotionally. If your partner keeps running you down, telling you that you are stupid, or no one likes you, or you have no friends, or other such things, you are in an abusive relationship and you should get out of it. You cannot change people.
The popular perception of a rapist is a figure lurking in the shadows waiting to grab some woman from behind and drag her into a car or behind the bushes. Certainly there are rapists that fit that description. To counter those people, women need to always be aware of their surroundings. Avoiding lonely places, traveling with a companion, carrying mace or a gun and learning how to effectively resist are all things to consider.
Many women work in small retail stores where they might be the only employee. If they are not armed, they are very vulnerable to being attacked by strangers. Murder is the leading cause of death in the workplace for women. Because there is no guarantee that a robbery accompanied by a rape will not end in murder, if the robber is not content to take the money and run, the victim should always resist the best he or she can.
The majority of rape victims, however, are not assaulted by strangers but people they know in what is called “date rape.”
If the old saying, “Guys don’t make passes at girls who wear glasses,” is true, then girls who are known to carry guns may also have less problems with guys making passes. Such girls may be less likely to be the victim of date rape, but only because they may have fewer dates from predators. A gun is not effective in the date rape situation. Most people are very reluctant to kill another person. That hesitation is multiplied when the person is someone you thought was a friend. A jury is a lot less sympathetic when the person shot was someone known to the shooter.
The “he said,” “she said” factor dominates the date rape situation as the key issue will be consent. Because consent is central to these situations, the conduct of the victim is important. The best self-defense is to not do stupid things. First, don’t take pills from strange men or even men you know excepting only your husband, your dad and your doctor. If you are at a party, don’t leave your drink unattended. Some people think it funny to drug other people. Likewise, don’t drink to excess. People do strange things when they have had a couple of drinks. (Two beers are enough to be driving under the influence).
If you are at a party and everyone is getting drunk, leave. Men are emboldened to do stupid things when they are drunk and women are often the object of the stupidity. Judgment is clouded by alcohol and wishful thinking as to consent becomes reality to the inebriated mind.
Pulling out your gun at a party if one of the guests annoys you is generally not recommended. Likewise the use of pepper spray would not be appreciated by your host. The use of a stun gun might be interesting but its effects are a little too dramatic for a social setting. Often elbows, and knees can be used in such a manner as to leave your antagonist uncertain if the jab in the ribs was accidental or intentional. Kubotan training, however, is very effective in such situations as it teaches you how to use ordinary objects such as a pen or a key to get someone to release you from a hold by using the pressure/sensitive points on the human anatomy. The best part of the training is that it teaches you how to inflict a lot of pain without drawing a lot of attention.
The best self-defense, however, is to avoid problems or compromising situations.
If all of a sudden you find a man showing you unwanted attention in some social setting, be very clear and very direct to say, “NO.” Be aware, however, danger also lurks with the person you would like to know better or even someone you think you know. You may find that person very attractive. You have no way of knowing whether such people truly want to have a solid relationship with you or if they are lying to you so they can take advantage of you. Your heart may be saying, “yes;” but your brain may be saying, “no.” If so, go slow and be careful. A good man will respect your wishes.
Sudden flattery or attention from some prominent man may indicate he is on a “hunting” expedition rather than he has a desire to form a long term relationship. If he is sincere, he will not attempt to get you alone in some place; or, if he does make the offer, he will respect your suggesting an alternative public place to meet.
Remember what your mother told you, “Don’t take candy from strangers.” Or for that matter, don’t take candy from strange people.