Category Archives: Sexuality

A Quick Review of Sexual Assault Statutes

Did Donald Trump admit to criminal activity? Generally, sexual touching or contact without a person’s consent is a crime. For example, here are some provisions of New York’s Penal Code that relate to the actions that Donald Trump admitted to in his statements captured on tape and revealed by the Washington Post.

Leda and the Swan by Antoine Bourdaine

Leda and the Swan by Antoine Bourdaine

§130.52 Forcible touching.

A person is guilty of forcible touching when such person
intentionally, and for no legitimate purpose:
1. forcibly touches the sexual or other intimate parts of another
person for the purpose of degrading or abusing such person, or for the
purpose of gratifying the actor’s sexual desire; or
2. subjects another person to sexual contact for the purpose of
gratifying the actor’s sexual desire and with intent to degrade or abuse
such other person while such other person is a passenger on a bus,
train, or subway car operated by any transit agency, authority or
company, public or private, whose operation is authorized by New York
state or any of its political subdivisions.
For the purposes of this section, forcible touching includes
squeezing, grabbing or pinching..
Forcible touching is a class A misdemeanor.

§ 130.53 Persistent sexual abuse.

A person is guilty of persistent sexual abuse when he or she commits
the crime of forcible touching, as defined in section 130.52 of this
article, sexual abuse in the third degree, as defined in section 130.55
of this article, or sexual abuse in the second degree, as defined in
section 130.60 of this article, and, within the previous ten year
period, excluding any time during which such person was incarcerated for
any reason, has been convicted two or more times, in separate criminal
transactions for which sentence was imposed on separate occasions, of
forcible touching, as defined in section 130.52 of this article, sexual
abuse in the third degree as defined in section 130.55 of this article,
sexual abuse in the second degree, as defined in section 130.60 of this
article, or any offense defined in this article, of which the commission
or attempted commission thereof is a felony.
Persistent sexual abuse is a class E felony.

There are several statutes that criminalize sexual contact without consent. “Sexual contact” is defined by the New York Penal Code, §130.00(3) as:

“Sexual contact” means any touching of the sexual or other intimate
parts of a person for the purpose of gratifying sexual desire of either
party. It includes the touching of the actor by the victim, as well as
the touching of the victim by the actor, whether directly or through
clothing, as well as the emission of ejaculate by the actor upon any
part of the victim, clothed or unclothed.

For example, § 130.55 Sexual abuse in the third degree.

A person is guilty of sexual abuse in the third degree when he or she
subjects another person to sexual contact without the latter`s consent;
except that in any prosecution under this section, it is an affirmative
defense that (a) such other person`s lack of consent was due solely to
incapacity to consent by reason of being less than seventeen years old,
and (b) such other person was more than fourteen years old, and (c) the
defendant was less than five years older than such other person.
Sexual abuse in the third degree is a class B misdemeanor.

S 130.65 Sexual abuse in the first degree.

A person is guilty of sexual abuse in the first degree when he or she
subjects another person to sexual contact:
1. By forcible compulsion; or
2. When the other person is incapable of consent by reason of being
physically helpless; or
3. When the other person is less than eleven years old; or
4. When the other person is less than thirteen years old and the actor
is twenty-one years old or older.
Sexual abuse in the first degree is a class D felony.

So, even this statement – – – “I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait.” – – – could be an admission of a crime.

Constitutional Challenge to New York’s Loitering for Prostitution Law

Is New York’s Loitering for the Purpose of Engaging in a Prostitution Offense, NY Penal Code § 240.37[2], unconstitutional?  An important new complaint filed in the federal court by The Legal Aid Society in D.H. v. City of New York argues that the statute, facially and as applied, is unconstitutionally vague under the Due Process Clause and that its enforcement violates First Amendment rights to expression, Fourteenth Amendment rights to equal protection, and Fourth Amendment rights.

John Singer Sargent, Street in Venice, 1882, oil on wood

John Singer Sargent, Street in Venice, 1882, oil on wood

Essentially, the complaint alleges that the statute does not provide people with adequate notice of the conduct they should avoid to preclude arrest and results in the inclusion of First Amendment protected speech, expressive conduct, and association.  Further, these lack of statutory guidelines have meant that law enforcement actions under the statute have been arbitrary as well as discriminatory on the basis of classifications involving race, ethnicity, gender, and gender identity.

In addition to the statutory arguments, plaintiffs allege that the NYPD guidelines and practices have failed to remedy the problems and have in fact exacerbated them.  One central allegation regards attire:

Furthermore, the purported guidance provided in the NYPD Patrol Guide is equally vague and otherwise flawed, thereby increasing arbitrary enforcement. For instance, the NYPD Patrol Guide instructs officers that an arrestee’s “clothing” is “pertinent” to the probable cause inquiry. At the same time, the NYPD Patrol Guide does not provide any objective criteria regarding what types of attire may or may not have probative value for purposes of establishing probable cause, thus encouraging officers to make arrests based on individual, subjective opinions regarding what clothing someone who might be “loitering for the purpose of prostitution” would wear.    In pre-printed affidavits provided by prosecutors (also referred to as supporting depositions), which prompt the arresting officer to describe “revealing” or “provocative” clothing, officers often respond by citing a wide range of innocuous attire, such as “jeans,” a “black pea coat” or a pair of leggings.

[¶ 54].  The “black pea coat” as grounds supporting a solicitation for prostitution charge attracted attention in 2013 when a judge dismissed a charge which was based on the defendant “wearing a black peacoat, skinny jeans which revealed the outline of her legs and platform shoes.”

The unconstitutional inequality in the application of NY Penal Code section, §240.37[2] is analogous to the equal protection problems in New York City’s practice of stop and frisk.  Recall that a federal judge found NYC’s practices violated equal protection in her opinion in Floyd v. City of New York, later stayed – – – and thereafter clarified – – – by the Second Circuit, followed by the City’s new administration agreeing with the decision and abandoning the appeals.  One of the complaint’s pendent state law claims is a violation of the city’s own prohibition of bias-based profiling, NYC Admin. Code §14-151 (passed in 2013 by City Council overriding the then-mayor’s veto).

Loitering statutes in general, and more specifically loitering (and even soliciting) for “criminal sex” statutes, whether that sex is criminalized because it is commercial, public, or “unnatural” (as in previous sodomy prohibitions), have always been constitutionally problematic.  And the use of dress or appearance to establish “probable cause” or to constitute elements of a crime are constitutionally suspect. It will be interesting to see whether or not the City defends the action, and if it does, how vigorously.

[cross-posted at Constitutional Law Professors Blog]

Is the issue of sex-segregated facilities in schools headed to the United States Supreme Court?

Short answer: Probably sooner rather than later.

lossy-page1-480px-thumbnail.tifA Virginia school board has filed a stay application in the United States Supreme Court pending a petition for writ of certiorari to the Fourth Circuit’s opinion in G.G. v. Glouster County School Board.  In G.G., a divided panel, reversing the senior district judge, concluded that Title IX’s ban on sex discrimination,  20 U.S.C. § 1681(a), requires schools to provide transgender students access to restrooms congruent with their gender identity. (The senior district judge had not reached the Equal Protection claim, so it was not before the Fourth Circuit.)  In construing Title IX, the Fourth Circuit relied upon a January 7, 2015 opinion letter from the United States Department of Education, Office for Civil Rights, with a similar conclusion.  The Fourth Circuit accorded deference to the agency interpretation of Title IX because the relevant regulation was ambiguous – – – perhaps not in the plain meaning, but in its application.

Meanwhile, thirteen states have filed a complaint and application for preliminary injunction in Texas, based on the same letter.  The central challenge is failure to conform with the Administrative Procedure Act, including notice and comment for rule-making.  However, the complaint also alleges that the federal government defendants “violated the Spending Clause” by engaging in “unconstitutional coercion” by “economic dragooning,” relying in part on the famous  “Obamacare” case, NFIB v. Sebelius in which the Court upheld most the ACA, but found constitutional issues with the medicaid expansion funding.

More legal discussion over at Constitutional Law Professors Blog here.

[image via]

Unsexing Birth Certificates

The controversial “bathroom statute” in North Carolina, HB2, regulates the proper use of sex-segregated facilities as consistent with one’s “biological sex,” defined as the “physical condition of being male or female, which is stated on a person’s birth certificate.”

birth certificateThat the legal grounding of sex-determination should be one’s birth certificate is both predictable and shockingly naïve.  It also begs the questions of why birth certificates and other government documents designate M(ale) or F(emale).  Haven’t we moved beyond that?  Shouldn’t we?

In Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity and the Possibility of Genderless Identity Documents, a forthcoming article in Harvard Journal of Law and Gender, author Anna James (AJ) Neuman Wipfler explores the many issues surrounding sex designations on identity documents, in global and local contexts, highlighting the particularities of birth certificates.  It’s such a sophisticated, nuanced, and informative article that I have difficulty believing its own birth was as a student paper for a Sexuality and Law course  – – – full disclosure! – – – that I regularly teach at City University of New York (CUNY) School of Law.  {NOTE: It’s being offered again this Fall at the Law School and nonlaw students are eligible to enroll!}

Wipfler ultimately argues that the elimination of sex designations should be the goal, but recognizes that several types of “identity crises” merit attention before wholesale abandonment of sex designations.

You can read more about the article on The Institute for Feminist Studies blog here – – –

Wipfler ultimately contends that “as long as the state records gender identity, it will also police its boundaries,” even as there are “still too many dangers to remove gender markers from all identity documents in the United States all at once.”  Birth certificates are not only a strategic starting point, but their legal importance is demonstrated by laws such as the North Carolina one which would have many of us, especially those who appear gender-non-conforming, carry our official birth certificate whenever we might have to use the toilet.

Sexual Conversion Therapy at the UN and in the US


                                                           Hieronymus Bosch

Sexual conversion therapy, also known as reparative therapy or sexual orientation change efforts (“SOCE”) seek to “convert” a patient’s sexual orientation from homosexual to heterosexual (never the reverse). The goal of this “therapy” is to “cure” homosexuality.

The National Center for Lesbian Rights (NCLR) has recently been spearheading efforts to have the United Nations Committee Against Torture consider whether sexual conversion therapy in the US constitutes torture as defined by the Convention Against Torture (CAT).

Meanwhile, in the United States, two states have prohibited the practices – – – at least when provided by licensed therapists on patients who are minors.  The statutes of both California and New Jersey were challenged as infringing on therapists’ First Amendment rights of free speech. Federal appellate courts upheld both statutes, but on very different theories.  Here’s my discussion of the cases for the American Psychological Society.


Same-Sex Marriage May Be On Its Way to the Supreme Court

The Sixth Circuit’s opinion today in DeBoer v. Snyder upheld the constitutionality of several same-sex marriage bans, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee.  This bucks the trend in which circuit courts have declared such bans unconstitutional: the Seventh Circuit in  Bogan v. Baskin and  Walker v. Wolf,  decided in September, regarding the same-sex marriage bans in Indiana and Wisconsin; the Tenth Circuit in Herbert v. Kitchen, an opinion issued in June regarding Utah’s prohibition and Smith v. Bishop, extending Herbert’s reasoning to the ban in Oklahoma; and the Fourth Circuit in Bostic v. Rainey regarding Virginia’s ban.

800px-United_states_supreme_court_buildingAnd – – – more importantly – – – it creates a “circuit split” making the possibility that the United States Supreme Court will accept discretionary review much more likely.

The Sixth Circuit’s opinion is a divided one by a three-judge panel. The majority’s basic theme is judicial restraint: judges, especially federal judges, should not be deciding the issue. The dissenting judge begins her opinion with a scathing assessment of the scholarly quality of the majority’s opinion:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy.

Legal analysis and a link to the full text of the opinion is available in my post on the Constitutional Law Professors blog here

Trans* Marriage: Still An Issue

How do courts applying state law that requires “one man and one woman” for the validity of marriage look at marriages in which one of the parties has transitioned genders?

chazanThat’s an issue one of our CUNY Law alums, Alana Chazan (pictured), just litigated in California.  While California, of course, now recognizes same-sex marriages so that gender should not have been an issue at all, the marriage at issue occurred in Louisiana, a state that does not recognize same-sex marriages.

Superior Court Judge Gould-Saltman, in the Statement of Decision in Miller v. Angel considered the full faith and credit clause implications not only of the Louisiana marriage, but also of the California judgment that the petitioner was male, entered in 1998, years before the 2003 marriage.  In essence, the judge rules, that California judgment was good enough for a driver’s license and it is good enough for a marriage license, arguments that there needed to be a birth certificate notwithstanding.  The judge added that the putative spouse theory had relevance because the parties intended to be married to each other.

Why all the fuss about the validity of the marriage?  There’s an underlying property dispute.

I considered similar issues almost a decade ago in an essay  Reinscribing Normality? The Law and Politics of Transgender Marriage published in the anthology  Transgender Rights edited by Brooklyn College Professor Paisley Currah,  Shannon Minter, and Richard Juang.  (A version also appeared in Hypatia as A Mere Switch or a Fundamental Change? Theorizing Transgender Marriage and is available here).   The article analyzes the cases, their rhetoric, and also the lawyering choices that can pit individual interests against theoretical positions.   And though I don’t generally list my own work on a class syllabus, this is one that I’ve made optional in Sexuality and the Law for many years.

And how nice to get a note with the opinion from one of the former students in the class who used the article to win a case.

Though how odd that such cases are still being litigated.