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What Is & What Is NOT Defined As Sexual Abuse…By Law

Dr. Ava Cadell

As the #MeToo and #TimesUp movements are continuing to bring sexual harassment and abuse incidents to light at breakneck speed, the onslaught of cases has many people wondering about what laws are actually in place to punish offenders. At the same time, we’re also witnessing an anti-#MeToo wave, notably defined by the open letter from 100 French women, (Catherine DeNeuve, Briget Bardot & Abnousse Shalman included) who are expressing their concerns about going too far with re-writing the culture, like erasing certain actors from films, for example. They warn of a Puritanical wave that could reverse the progress and awareness #MeToo has raised.

Personally I think that sexual abuse has been so rampant for so long that a little collateral damage (like Kevin Spacey getting cut out of his latest TV series, House of Cards) is not the end of the world. I’m not too concerned that a new wave of “political correctness” is going to undermine my freedom to act sexy or allow a date to open the door for me. After all, the “PC police” of the 1980s and 1990s didn’t stop the devastating number of campus rapes.

In researching my new sexual healing memoir with solutions for sexual abuse survivors, over the last several months, I’ve been doing a lot of thinking about the subtle differences between types of sexual harassment and abuse. To borrow a phrase from Facebook: “It’s complicated.” For example in 1981, when Harvey Weinstein bought a British movie that I starred in called Spaced Out, Miramax paid for me to go to Chicago to promote it.  He invited me to his suite at the Intercontinental Hotel to meet him for the first time. When I arrived, his door was slightly ajar, so I peeked in to see him sitting in a bathtub with his back to the door. I called out to him and he turned his head with a smile and said, “You can come in to wash my back if you like.” I giggled nervously and said, “No thanks, I’ll meet you downstairs in the bar,” and left. It was an unmemorable experience which I personally did not describe as harassment. The sexual predators of my past had so influenced my behavior that it honestly didn’t even occur to me that it was abusive in any way. I even laughed it off with comedian Bob Saget who was there promoting the same movie, as Miramax had replaced the original British spaceship’s computer voice with Bob’s American one. But another woman might have been devastated by the exact same experience, and be completely within her rights to call out his inappropriate behavior.

It didn’t feel like harassment. But then in 2017, I wasn’t shocked to see Harvey’s crimes splashed on the headlines. If I had that incident to do over now, I would have called out his behavior because maybe it would have helped someone in the future to have something on the record.  But was Harvey’s behavior with me specifically, criminal? It was certainly “harassment” as defined by the Civil Rights Act of 1964 in Title VII. Take a look (from the U.S. Equal Employment Opportunity Commision (EEOC):

“Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

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Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.
When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.”

But these Civil Rights Act laws are only applicable to the workplace when there are 15 or more employees working for the company. Harvey may have had 15 or more employees at the time, but would I have been considered one of them as an actor in a film he merely distributed? Probably not. Probably I would have been laughed out of any police precinct in the country, especially since it was 1982. I’m using this incident to illustrate the need for new, more descriptive laws. We need to map out what types of harassment exist and have a serious conversation about what the consequences should be. I’m sure the French ladies who signed their letter of warning would say that my Harvey story was not criminal, but if you look at it from, say, Rose MacGowan’s point of view, maybe his pattern could have been disrupted and she would have been spared the trauma of sexual assault? McGowan’s experience obviously falls squarely into the U.S. Criminal Code, which I’m publishing here at the end because I think it needs to be part of the conversation.

WHEN IN DOUBT, CALL IT OUT!

Part of my own sexual healing from abuse has been to define the behaviors of my aggressors in an attempt to figure out what exactly I’m recovering from. My story is extreme, beginning with rape in my early childhood and sex trafficking in my teens, and looking back, the most destructive element aside from the abuse itself, was how it was all ‘normalized.’ There was an expectation of secrecy which I was forced to participate in, because I was fearful of my own safety and the retaliation of my abusers. Silence is deadly, and in my case led to extreme self-doubt and depression. That’s why in this #MeToo moment, I’m going to herald a new cry: When in doubt, call it out!

Trust your instincts. If you think someone is acting inappropriately, or you know they are but aren’t sure whether to say something, say something! It’s the only way we can move away from this appalling “consent” that we inadvertently bestow on creepy individuals when we don’t speak up!

And speaking of consent, here is my Sexual Consent Form, which I created in 2006 with my late husband Peter Knecht, who was a criminal defense attorney. The catalyst was the Kobe Bryant alleged sexual assault case where there was a tremendous amount of “he said, she said.” I thought it was about time for America to come up with a solution whereby both parties about to have sex could slow down for a moment, long enough to talk about what they were about to do. By the way, this is just a good idea in general, for any couple, whether it’s a first date or a married couple.

Here’s why I think this sexual consent form works, as I wrote in a blog back in 2014 when Governor Jerry Brown signed the “Yes Means Yes” legislation in California. There was a push to solve the campus rape epidemic when Obama was president, and many sexual consent apps had come out, and were all but laughed out of the marketplace. I didn’t have a lot of company in my opinion that consent forms work, and it’s still the subject of much debate.

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SEXUAL CONSENT FORM

As promised, here is the exact wording of American sexual abuse laws, from the U.S. Criminal Code. As far as my research has led me, sexual harassment laws are only covered in the Civil Rights Code (Title VII) and are only applicable if you are harassed at a workplace that employs more than 15 people.

From The United Stated Code – Title 18 (The Criminal Code)

(a) By Force or Threat.—Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly causes another person to engage in a sexual act—

(1) by using force against that other person; or

(2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.

(b) By Other Means.—Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly—

(1) renders another person unconscious and thereby engages in a sexual act with that other person; or

(2) administers to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby—

(A) substantially impairs the ability of that other person to appraise or control conduct; and

(B) engages in a sexual act with that other person; or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.

(c) With Children.—Whoever crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years, or in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or knowingly engages in a sexual act under the circumstances described in subsections (a) and (b) with another person who has attained the age of 12 years but has not attained the age of 16 years (and is at least 4 years younger than the person so engaging), or attempts to do so, shall be fined under this title and imprisoned for not less than 30 years or for life. If the defendant has previously been convicted of another Federal offense under this subsection, or of a State offense that would have been an offense under either such provision had the offense occurred in a Federal prison, unless the death penalty is imposed, the defendant shall be sentenced to life in prison.

(d) State of Mind Proof Requirement.—In a prosecution under subsection (c) of this section, the Government need not prove that the defendant knew that the other person engaging in the sexual act had not attained the age of 12 years.

Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly—

(1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or

(2) engages in a sexual act with another person if that other person is—

(A) incapable of appraising the nature of the conduct; or

(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act; or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life.

(a) Of a Minor.—Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who—

(1) has attained the age of 12 years but has not attained the age of 16 years; and

(2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.

(b) Of a Ward.—Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who is—

(1) in official detention; and

(2) under the custodial, supervisory, or disciplinary authority of the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.

(c) Defenses.—(1) In a prosecution under subsection (a) of this section, it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the other person had attained the age of 16 years.

(2) In a prosecution under this section, it is a defense, which the defendant must establish by a preponderance of the evidence, that the persons engaging in the sexual act were at that time married to each other.

(d) State of Mind Proof Requirement.—In a prosecution under subsection (a) of this section, the Government need not prove that the defendant knew—

(1) the age of the other person engaging in the sexual act; or

(2) that the requisite age difference existed between the persons so engaging.

(a) Sexual Conduct in Circumstances Where Sexual Acts Are Punished by This Chapter.—Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in or causes sexual contact with or by another person, if so to do would violate—

(1) subsection (a) or (b) of section 2241 of this title had the sexual contact been a sexual act, shall be fined under this title, imprisoned not more than ten years, or both;

(2) section 2242 of this title had the sexual contact been a sexual act, shall be fined under this title, imprisoned not more than three years, or both;

(3) subsection (a) of section 2243 of this title had the sexual contact been a sexual act, shall be fined under this title, imprisoned not more than two years, or both;

(4) subsection (b) of section 2243 of this title had the sexual contact been a sexual act, shall be fined under this title, imprisoned not more than two years, or both; or

(5) subsection (c) of section 2241 of this title had the sexual contact been a sexual act, shall be fined under this title and imprisoned for any term of years or for life.

(b) In Other Circumstances.—Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in sexual contact with another person without that other person’s permission shall be fined under this title, imprisoned not more than two years, or both.

(c) Offenses Involving Young Children.—If the sexual contact that violates this section (other than subsection (a)(5)) is with an individual who has not attained the age of 12 years, the maximum term of imprisonment that may be imposed for the offense shall be twice that otherwise provided in this section.

As used in this chapter—

(1) the term “prison” means a correctional, detention, or penal facility;

(2) the term “sexual act” means—

(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;

(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;

(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or

(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;

(3) the term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;

(4) the term “serious bodily injury” means bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty;

(5) the term “official detention” means—

(A) detention by a Federal officer or employee, or under the direction of a Federal officer or employee, following arrest for an offense; following surrender in lieu of arrest for an offense; following a charge or conviction of an offense, or an allegation or finding of juvenile delinquency; following commitment as a material witness; following civil commitment in lieu of criminal proceedings or pending resumption of criminal proceedings that are being held in abeyance, or pending extradition, deportation, or exclusion; or

(B) custody by a Federal officer or employee, or under the direction of a Federal officer or employee, for purposes incident to any detention described in subparagraph (A) of this paragraph, including transportation, medical diagnosis or treatment, court appearance, work, and recreation;

but does not include supervision or other control (other than custody during specified hours or days) after release on bail, probation, or parole, or after release following a finding of juvenile delinquency; and

(6) the term “State” means a State of the United States, the District of Columbia, and any commonwealth, possession, or territory of the United States.

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