The Supreme Court will have a new opportunity to rein in the progressive creep of criminalizing consensual sex after the justices will hear oral arguments in an appeal by Bill Cosby, who is seeking to overturn a ruling by the 3rd U.S. Circuit Court of Appeals that made it easier for people accused of sexual assault to claim it was consensual.
Here’s how the argument will be framed by one legal expert, who emphasized that the ruling, known as Haddad v. Gableman, “damages our very notion of what constitutes rape and sexual assault.”
“The original purpose of law was to protect women from their rapists,” said Rachel Green, a law professor at Yale University. “And that purpose remains intact. So if you can’t punish someone who violates the law, it’s a tool, in many ways, to get rid of people who are rapist.”
But under Haddad, “this very important right of someone who says, ‘Hey, I had sex with someone in a nonconsensual way and they think that was my property,’ has been curtailed,” she said. “And that’s not just a bad thing, that’s kind of a deeply disturbing thing because it’s saying that a defendant is entitled to some kind of forgiveness in a way that would never happen if a victim were able to try to prosecute.”
She added: “It gives defendants the ability to say, ‘I had consensual sex with someone, and they’re accusing me of sexual assault, I’m also telling them I didn’t do anything wrong. It is someone else’s property. I don’t think I had sex with anyone wrongfully, therefore I don’t have to pay a penalty for that,’ which is not what people think when they hear the word ‘sexual assault.’”
For decades, women who were raped faced high criminal sanctions — along with self-destructive consequences, such as the shame of an accusation and the stigmatization of sexual assault. But the Haddad case, which made it more likely that men accused of sex crimes would get relief from their accusers’ legal claims, could undermine efforts to enforce and protect women’s rights to bodily integrity, safety and agency.
In 2013, Mr. Cosby was convicted in Pennsylvania on three counts of aggravated indecent assault for drugging and assaulting Andrea Constand in 2004. This July, a judge vacated his convictions in light of the Haddad decision, saying that there was no evidence that he had sexually assaulted Ms. Constand “without her express consent.”
“The full scope of the problem is only really uncovered with time and society tends to get a little careless,” said Jodi Ziesemer, a professor at William Mitchell College of Law. “The potential impact on society is really a positive one.”
Supreme Court Justice Ruth Bader Ginsburg wrote an article in The American Lawyer this week arguing that “national attention to sexual assault and harassment has resulted in the enactment of civil and criminal law reforms.”
“Looking ahead, I have a sense that we are entering a period of renewed interest in rape as a women’s issue,” she said.
“Haddad places the state in the moral position of a prosecutor,” Ms. Ziesemer said. “It puts the state in the position of saying, ‘Are you sure you’re not accusing a predator? Are you sure you’re not accusing someone who is innocent? What if you’re right?’ ”