At this point, I must be suffering from some sort of abuse fatigue; as the disturbingly high numbers of women come forward every day reporting new sexual crimes committed by prominent men, it’s becoming increasingly difficult to muster commensurate outrage.
I had no trouble, however, being truly shocked over Eric Schneiderman’s inexplicable response. Here’s what he said:
“In the privacy of intimate relationships, I have engaged in role-playing and other consensual sexual activity. I have not assaulted anyone. I have never engaged in nonconsensual sex, which is a line I would not cross.”
To the casual observer, this might sound like a flat denial of wrongdoing. It really isn’t, though.
From a legal standpoint, this statement is vaguely disastrous for Schneiderman. These women’s allegations – which have included slapping and choking – have the potential to expose Schneiderman to criminal liability.
Here’s the New York Penal Code for assault and for sexual assault – either of which could relate to the Schneiderman allegations:
120.00 Assault in the third degree. A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or 2. He recklessly causes physical injury to another person; or 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. Assault in the third degree is a class A misdemeanor.130.05 Sex offenses; lack of consent.
- Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim.
- Lack of consent results from: (a) Forcible compulsion;
Schneiderman’s statement comes awfully close to confirming that the violent acts in question did actually occur. Not a good look for the AG. If a prosecutor could prove that any of these women suffered physical injury as a result of Schneiderman’s reckless, negligent, or intentional actions, he’s in trouble.
Schneiderman’s reference to role-playing was likely his way of raising consent as a defense. Consent – legal for “you said I could do this” – can absolutely be a valid defense to assault. If, in fact, the women agreed to being hit or choked during sex as part of a truly consensual role-play, there’d be no assault. The problem is, though, that anyone who asserts the “not guilty because of consent” defense admits to performing the underlying action. And consent is a finicky defense, because to work, it must have been knowing and voluntary on the part of the person giving it. Even if the person throwing a punch thought his partner had been consenting, he might have been wrong. In such a case, no consent means no defense to criminal assault.
The other thing about consent, Schneiderman must know, is that it has a limited scope. Just because a person consents to one thing (sex, for example) doesn’t mean she consents to all things (being slapped, for example). Again, admitting that he engaged in role-playing as a direct response to accusations of physical assault leaves the door wide open for the possibility that what was naughty sex in Schneiderman’s mind was, in reality, a full-on crime.
And why in the name of all that is Weinstein, would anyone voluntarily admit to engaging in potentially legally-risky sex? The burden of proof is on prosecutors. Proving details of long-ago sex would be difficult if not outright impossible. Why on earth would any law enforcement professional offer up an unsolicited admission to something so potentially problematic? I just don’t get it.
There’s no upside for Schneiderman here. His statement wasn’t an apology, so there are no PR points to be won. It wasn’t a full admission of guilt either, but rather, it is a factual admission that could come back to bite him in his role-playing ass. For a guy who has recently shown a serious gift for strategy with respect to plans to prosecute President Trump, I’d frankly have expected better.