This post was inspired by an email from Cameron, who asks whether vampires with the ability to glamour people could potentially be liable for rape or sexual assault. That is a really good question, and we’re going to take a look at it here.
But before we do, a few preliminaries. First, we understand that sexual assault is a really touchy subject, personally, emotionally, and even politically. Please do not think that by examining the fictional issue of mind control that we’re taking this lightly. We aren’t. Second, the way the criminal justice system deals with sexual assault charges is widely recognized to be problematic. We understand this too. Indeed, it’s perhaps the single most conspicuous area of dysfunction in the criminal legal system. It’s far from the only area in which injustice is routine, but in most of the rest of the legal system, the laws are basically doing what they were passed to do. Not so here. So when we conclude that something is/is not legal or will/will not lead to a conviction, understand that we are not thereby saying that this is a desirable outcome. But the fact is that in real life, sex crime cases rarely go well for anyone involved. If we’re going to look at the implications of something like mind control in this context, we need to be able to discuss things the way they are, even if we wish they were different.
Further, there really isn’t any way of talking about these issues without being fairly graphic. We will attempt to be sensitive and circumspect about this where possible, but this is necessarily going to be one of our more family-unfriendly posts. We think this is an important enough subject to be worth posting about, but those who don’t want to read about this sort of thing should feel free to come back on Wednesday, when we’ll return to our usual fare.
With those things in mind, let’s think about this.
I. Sexual Assault Defined
First things first: we need to understand what we’re talking about here. This blog is about the law. So we are concerned here with the legal definition of sexual assault, not its meaning in the context of sexual ethics generally. For instance, some advocates and activists who work on behalf of rape/sexual assault victims argue that any sexual activity that is not preceded, at every step, by explicit verbal consent from both parties, constitutes sexual assault. An example. Whether or not this is good practice is neither here nor there: that is not what the law says in most states, nor what juries require. In the context of a sexual assault crime, consent need not be explicit and can be inferred from both the parties conduct and the surrounding circumstances. Again, we are concerned with the legal definition of sexual assault. Just because a particular action might not count as sexual assault in terms of the law does not by any means mean that it’s an okay thing to do. That’s an entirely different analysis, and we do not pretend to be able to advance anything like a generally-accepted framework for sexual ethics here. But it seems indisputable that using mind control to make someone have sex with you is clearly wrong, even if it is not necessarily illegal. We’ll look at why in a minute, but understand that we are only concerned with the law here, not the standards of decent human conduct.
But that actually complicates things a bit, because the terms “rape” and “sexual assault” have a fairly wide range of legal meanings across jurisdictions. Sex crimes are defined by statute these days, and the differences between different states’ sex crime statutes display a lot more variation than in many other criminal areas. Some statutes eliminate the term “rape” from their statutes entirely, calling all sex crimes “sexual assault” or some other term and then sorting by degrees. Other states limit “rape” to non-consensual sexual intercourse, i.e., vaginal penetration with the penis, and classify all other sex crimes under other terms. Under such a scheme, it would be impossible, by definition, for a man to “rape” another man, but whatever crime it would constitute is usually of the same severity as “rape” in that jurisdiction. Still other states have defined crimes for “criminal deviant conduct” or other like terms, carving up various kinds of sexual assault by the kind of conduct. For our purposes, these distinctions are largely unimportant. We’re going to use the term “sexual assault” to refer to all sex crimes with an intent element and a consent element. Thus we’re not concerned with precisely what sexual activity occurs in a particular encounter. Which sex crimes, if any, the vampire could be charged with will depend significantly on state law. All we need is for something to happen that, if intentional and non-consensual, would be some kind of sex crime, and we’re lumping all of those into the term “sexual assault”. Nor are we concerned with the various species of statutory rape, as that is generally a strict liability offense without a consent element. When an adult has sexual contact with a minor, it doesn’t matter whether mind control was used or not: it’s a crime, period.
So the question becomes: if a vampire (or anyone else for that matter) uses mind control on a victim, and then engages in some kind of sexual activity with said victim, is the vampire guilty of sexual assault? And if so, will the prosecution be able to prove it?
II. Consent and Sexual Assault
As suggested above, prosecuting sexual crimes is very difficult. Only about 9% of the estimated total number of sexual assaults are ever prosecuted, and only about half of those result in a felony conviction. About 5% of the total. Contrast with murder, which even pessimistic estimates suggest has a conviction rate in excess of 40%, nationwide, with police department closure rates higher than that.
There are two main difficulties here. The first is something that causes problems for all prosecutions, i.e., ambiguity is bad for the prosecution’s case. Crimes must be proven beyond a reasonable doubt. A jury needs to be convinced, not simply that there was something sketchy going on—if that was the standard, there would be no acquittals—but that the only reasonable conclusion is that the defendant committed the crime(s) of which he or she stands accused. So when the defendant’s actions are subject to multiple interpretations, that makes the prosecutor’s job more difficult. If there is at least one reasonable interpretation that would exonerate the defendant, he or she may well walk. But this is especially problematic in sexual assault cases, because the facts which give rise to those cases tend to be rife with ambiguities. According to one advocacy group, only about 27% of sex crimes are committed by a stranger, and 28% are committed by an intimate partner (current or former). The fact that sex usually happens in the inherently messy and ambiguous context of human relationships makes obtaining convictions exceptionally difficult.
But the second difficulty, while related to the ambiguity issue that plagues all criminal cases, is unique to sex crimes, i.e., consent is the only thing that separates legal, even ethical sexual conduct from criminal sexual conduct. Granted, the presence or absence of consent is a huge issue from an ethical standpoint, but from an evidentiary standpoint, there’s very little to distinguish one from the other in many cases. It is presumptively legal to have sex with anyone you like. Adultery and promiscuity have not been prosecuted for the better part of a century. Precisely the same physical act can be legal tonight and illegal tomorrow night solely depending on whether or not there is consent. For instance, most people go on dates, and many of those dates end with some kind of sexual activity. The vast majority of the time, this is okay, legally speaking, and most people would say there’s no ethical problem there either. Juries know this. Juries can and will infer consent from the totality of the circumstances, including previous conduct by the victim, the circumstances of the alleged assault, and any relationship between the victim and the defendant. So if the victim and the defendant were in a romantic relationship, even the beginning of one, or were simply mutual attendees a party where the alcohol was flowing and lots of people were “hooking up,” convincing a jury that this time it was non-consensual can be an extraordinarily difficult sell.
Contrast with, say, bank robbery. Call it a “non-consensual withdrawal” to make the analogy easier to see. Making a withdrawal from one’s own bank is okay the vast majority of the time. But the criteria which make a legal withdrawal from an illegal one are supported by mounds of evidence. One either has sufficient money for the withdrawal or one does not, and the bank will have readily available evidence that does not admit much in the way of ambiguity. The presence of masks and guns makes it even easier. But where sex is involved, and there’s no overt violence—and there isn’t in many, many cases—the prosecution frequently does’t have much to go on. It’s the victim’s word against the defendant’s. That can be enough. But it frequently isn’t.
Further, sexual activity is only sexual assault when it is non-consensual at the time. Having consensual sex with someone and later regretting it does not transform that encounter into a sexual assault. You can change your mind the morning after, but that doesn’t change the nature of what happened last night. Juries know this too, and it muddies the waters even further.
III. Mind Control and Sexual Assault
This is what makes the interaction of mind control and sexual assault so problematic. Let’s say we’ve got a defendant vampire, and a victim who claims that she was induced to have sex by the power of the defendant’s glamour. Even if we stipulate to the fact of the sexual contact, all the defendant needs to do is create reasonable doubt as to whether the alleged victim consented or not. This can be accomplished in a variety of ways.
First, he could simply deny having “glamoured” her at all. Who’s going to provide evidence to the contrary? Assuming that the effect of “glamouring” people is to make them involuntarily or even willingly do whatever the vampire wants, all the victim is going to know is that she had sex with the vampire and thinks she was glamoured at the time. That does’t leave the prosecution with much of a case. Unless the use of the glamour leaves physical, detectable traces (and it doesn’t in most versions of these stories), the case is no different from any other cases where it’s the victim’s word against the defendant’s. Indeed, depending on who’s doing the writing, many vampires could plausibly assert that they don’t need to use their glamour to get people to have sex with them. Given the prevailing modern trend of portraying vampires as fascinatingly beautiful rather than repulsively ugly, that could be a pretty effective argument in many fictional worlds. Throw in prejudice and/or bias by the jury, and anything goes.
Second, and this is where we really get into it, whether sexual activity engaged in while under the influence of mind control would even count as non-consensual is a thorny question which will depend significantly on state law. New York, for instance, has an pretty detailed, granular statute (N.Y. Penal Law 130) dealing with sexual assault. The statute distinguishes between the “mentally disabled,” i.e., the permanently mentally deficient, and the “mentally incapacitated,” i.e., the temporarily mentally impaired, and makes it a crime to have sex with either. A “mentally incapacitated” person is “temporarily incapable of appraising or controlling his conduct” because of any act to which he did not consent. The section seems specifically designed to deal with spiked drinks, but it covers “any. . . act committed upon him without his consent.” Would glamouring count?
Probably. Glamoured people move and act much like non-glamoured people in terms of the way they do things, so they can arguably “control” their actions within the meaning of the statute, or at least the prosecution will have a hard time proving otherwise. But glamoured people do seem to lack the capacity to “appraise” their conduct, i.e., make reasoned decisions about what it is they’re doing. So even if their actions are arguably voluntary, they’re not really knowing actions. That isn’t enough by itself—getting hammered of one’s own accord does not automatically render one “mentally incapacitated”—but if the prosecution can prove both that the victim was glamoured (good luck) and that it was done without the victim’s consent (ditto), that would seem to fit the bill. A prosecutor who could prove both of those things could well get a conviction, but he’s got a fight on his hands.
But consider the law in Indiana, which has its own, somewhat narrower sex crimes statute. Ind. Code 35-42-4-1 makes it a crime to have sex with someone who is “compelled by force or the threat of force.” This sounds good, and the courts have interpreted that fairly broadly, but all of those interpretations focus on the perception of the victim. Anything that a victim reasonably perceives as a threat of force can serve to ground a conviction for sexual assault, but the victim must perceive it. As glamoured persons don’t typically perceive themselves being glamoured—they may realize it later, but they don’t experience it at the time—that isn’t going to work. Further, the courts seem to interpret “force” to mean “physical force” or “the threat of physical injury.” The court’s require sex with an unwilling victim. If the victim is willing, and was made so by anything other than the threat of physical violence, that doesn’t seem to count as sexual assault in Indiana. But even if it did, the prosecutor would still need to prove that the glamouring happened, and now we’re right back to the evidentiary problems we discussed above.
The Indiana statute also prohibits sex with anyone who is “so mentally disabled or deficient” that they cannot give consent, but the relevant cases seem to limit this to what the New York statute classifies as “mentally deficient,” i.e., the permanently mentally impaired. There does not appear to be an analog to the “mentally incapacitated” category, and the statute treats spiked drinks and the like as an aggravating factor, not an independent ground for a charge. So an Indiana prosecutor couldn’t use the same legal theory of mental incapacitation as a New York prosecutor could. On the other hand, Indiana does specifically criminalize sexual activity with someone who is “unaware” that the activity is occurring. But if the glamoured victim was aware of what was going on, as they seem to be in most of these accounts, that won’t help either. So even though making someone have sex with you by using a glamour is clearly wrong, it might not constitute sexual assault under a statute like Indiana’s.
Thinking about this issue exposes a lot of the difficulties in sexual assault cases. Take what may be an already messy, ambiguous situation, say two people meeting at a bar. Add a supernatural power to manipulate people, combine with diverse state criminal statutes, and you get a legal result that sometimes runs counter to our ethical intuitions. Using a glamour or mind control to get someone to have sex with you is clearly wrong. But it might not be illegal everywhere. It all depends on how the power works and how the state law is written. But even if it is illegal, such a case would be difficult for a prosecutor to win, regardless of jurisdiction, even by the already difficult standards of sexual assault cases in general. It’s a tough one. If nothing else, it may suggest that legislatures really need to rethink their sexual assault statutes. But there’s already a lot of pressure to do this, and there don’t seem to be many obvious fixes.