As an attorney, I am getting this question asked in various formats more frequently in light of the current social dialogue and #metoo movement:
Are you a man about to leap into bed with a woman, worried that you might not later be able to prove in court that you’re not actually a rapist?
Welcome to dating in the post-Harvey Weinstein era. With the Hollywood mogul’s downfall, the ripples are still spreading, moving out from sexual harassment at work towards more intimate relationships. Nights that might once have been grimly chalked up to experience, classed as bad dates or near misses, are being exhumed and re-evaluated. It is as if women are watching the film of their lives from a different vantage point, searching for something they missed at the time.
Stop.
Rewind.
Look again.
If sexual encounters can be divided into roughly three categories – happy and consensual; rape; and a hazy area of acts you did not want to do but to which you ended up giving in – then it is the third that now consumes attention. It is the things women go along with out of politeness, pity or embarrassment, or they were taught that, in rejecting any overture, “we mustn’t make a man feel bad about anything”.
No means no. For anyone over 40, that phrase still feels almost radical; a generation fought tooth and nail for the idea that, no matter what the victim wore or how she behaved, no still always means no.
The law does not specify how consent should be expressed, stating only that a person consents “if he agrees by choice, and has the freedom and capacity to make that choice” – for example, they are not underage, mentally incapacitated or so drunk as to be incapable.
But juries still like to see evidence of complainants clearly saying “no” – and so does the court of public opinion.
Yet “no means no” is increasingly seen by younger women as an embarrassingly basic approach to consent. They argue it encourages men to assume that, so long as their partner did not audibly say “no”, they are covered, even if that partner was shrinking away, asking them to slow down or frozen with fear.
Badgering someone into queasy submission might technically be within the law, but it is not the road to a happy sex life and it may no longer protect a man from public censure. What young men should look for, is not the potentially ambiguous absence of “no”, but the enthusiastic presence of a “yes, yes, yes” or affirmative consent. “
In 2018, ‘no means no’ is totally antiquated. It puts all the pressure on the person in the most vulnerable position, that if someone doesn’t have the capacity or the confidence to speak up, then they’re going to be violated,” she says. “If somebody isn’t an enthusiastic yes, if they’re hesitating, if they’re like: ‘Uh, I don’t know’ – at this point in time, that equals no.”
Dating like this requires men to focus much harder on what their partners are thinking and feeling and means more talking than some are comfortable with (although, it is better to kill the moment by asking if something is wrong than to make a mistake and ruin your life).
It is undeniably challenging for men who are not good at reading emotions; some struggle even to gauge a first date accurately, never mind anything more. “They’ll say: ‘I just don’t get it, I did everything right and she was laughing and smiling and now I’m calling and she’s not answering.’ And you have to go through the date with them and say: ‘Well, sometimes people laugh out of politeness.’ Or sometimes when a date ends and a guy says: ‘Would you like to go out again some time?’ the woman will say: ‘Yeah, sure,’ but she doesn’t really mean it, she just doesn’t want to sound mean. You have to get more adept at reading the body language.”
Affirmative consent puts female pleasure unashamedly centre-stage
But it also requires women to get over any coyness about articulating their own desires and to stop expecting men to read their minds. For affirmative consent puts female pleasure unashamedly centre-stage.
Like generations of feminists before them, millennials have been accused of being puritanical killjoys or making it practically impossible to have sex at all. But, in some ways, the reverse is true: their whole point is that sex is meant to be fun, that being browbeaten into it is miserable and that more communication should mean better sex for everyone.
That is the point where two halves of the millennial psyche – the #MeToo movement and a lusty, libidinous sex-positive movement seeking to reclaim the word “slut” as a joyful thing – come together.
“‘Slut’ is a great word. It just sounds perfect – so sharp and clear and beautiful,” writes Karley Sciortino in her book, Slutever: A Memoir and a Manifesto. A Vogue columnist, sex blogger and host of the explicit Vice show Slutever, Sciortino is hardly a prude. Yet she argues that both movements are about women claiming ownership of their bodies and their desire. If anything, the wilder sex gets, the more consent is taken seriously (think of the safe words agreed between dominants and submissives or the elaborate ground rules negotiated by couples in open marriages).
What #MeToo is doing, is pushing this language of consent into the mainstream and prompting women everywhere to wonder why the most liberated generation in history still seems to be having so much terrible sex. “I really think it’s like a sexual revolution in its own right.”
And what if older generations still look on young people’s increasingly complicated sex lives, with their baffling terms and outrageous practices and alien moral codes, in despair? Well, plus change. Once upon a time, it was how the previous generation felt about theirs.
Sex is still a crime because of the uneven, hierarchical power dynamic between the parties. So whomever counseled Harvey Weinstein and other accused predators to claim that sex acts were “consensual” are morons.
Because this sort of denial functions in fact as an admission of guilt. Especially due to the unequal power dynamics – for example, physical size, money, the power to affect someone’s (Salma Hayek’s, Mira Sorvino’s, Ashley Judd’s) career and livelihood, etc.
“Consent” means that two adults – who have the right to make unimpaired and unpressured decisions – agree on a particular interaction that is occurring or going to occur. “Consensual” is most frequently employed to connote that an action that has already taken place was agreed upon at the time that it occurred. Thus, when someone says that “all sex acts were consensual,” and the other party says, “No, I did not consent,” by admitting to partaking in a sex act, the accused is inadvertently admitting to rape. Because both parties must consent and for the act to be consensual. If she says that she did not consent, and there is no written agreement or physical evidence that she consented, then the act was not consensual, and thus must have been rape. His word against hers.
In order to secure safety for all workers, new rules, regulations, protocols, and even laws must be established. When an employee signs an employment contract, there should be clauses , “You agree not to attempt to romantically or sexually pursue any of your employees, any of your bosses, and anyone with whom you conduct business. Transgression of this agreement will result in immediate firing and substantial penalties.” And the owners and boards of directors for all companies must abide by as well as enforce these regulations.
This type of disincentive creates a safe environment and is necessary to create the same frame for all professional relationships and safeguard the unsuspecting from small-spirited, insatiable powermongers – American Psychos.
Regulations must preclude business meetings taking place in hotel rooms or anyplace where any of the parties could feel compromised.
And what effect would such regulations and laws have on dating and mating? Women from my generation were taught to play “hard to get.” So when a man asks a woman out TWICE, will that now be considered “sexual harassment?”
Hint: You don’t want to find out.
When a millennial texts “Wanna hang out?” to a potential lover who texts back, “Sure,” does that constitute mutual consent to engage in a sex act? Hint: You do not want a jury answering that question.
Thanks to Rose McGowan and the 80+ other brave women – out of the thousands that have been defiled or violated, as well as those who consented to sex (or even offered sex) in order to advance their careers – these are the questions that now confront us.
The vagueness of previous courtship rituals must be retired. The myth of romance is moribund; passion may be comorbid with a level of dysfunctionality that has become insufferable. Hereafter, all roads must lead to authenticity and authentic communications. So no, Woody Allen, you may no longer wink at pretty, young girls.
But what would it mean to be authentically romantic?
Could romance actually require a touch of insinuation?
Do you understand what you consider to be erotic and why?
Does anyone watching pornography think, “Oh, that is so sweet! They really love each other!”? No, they don’t. Because pornography is not about love, it’s about power.
In 2015, California enacted the “yes means yes” law, which defines consent on college campuses is affirmative consent, or “knowing, voluntary, and mutual decision among all participants to engage in sexual activity.”
If states had consent laws that were “easy to understand and easy to teach, then you’d see people engaging with consent in a completely different way.”
While each state defines sexual assault differently under the law, “the hallmark of sexual assault is some form of sexual contact that is with an intimate body part of the victim or penetration or oral copulation that occurs without the consent and against the wishes or will of the victim,
Sexual Assault is usually a felony that can result in a significant prison sentence.
Sexual harassment, however, is typically not an offense charged in a criminal court but is most often handled in civil court.
What Is Sexual Assault?
Sexual assault is any sexual act that includes penetration of the mouth or private parts without a victim’s consent.
There are other facets to the criminal statute, but the key factor is that victims did not give their consent before the act occurred.
In fact, although the legal language is different in most states, sexual assault usually involves a victim that did not or was unable to give consent.
Victims of sexual assault can include spouses as well as members of the same gender, and in most states, the law doesn’t allow minors to give consent, even if they agreed to participate in the sexual act.
What Is Sexual Harassment?
Sexual harassment is enforced under Title VII of the Civil Rights Act of 1964 and applies to any U.S. company with 15 or more workers.
According to the Equal Employment Opportunity Commission (EEOC), sexual harassment is any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of 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.(1)
The EEOC further defines sexual harassment as conduct that the victim finds offensive and unsolicited, conduct initiated by a supervisor, co-worker or non-employee, and conduct between a man and woman, or two members of the same gender.
Common types of sexual harassment include:
Unsolicited requests for sex
Unwanted physical or visual contact
Sending sexually-explicit photos, emails, or texts
Using sexually-charged language
Exchanging job favors for sex
It’s important to remember that every state provides different protections for victims of sexual harassment.
Some states have specific laws regarding sexual harassment, and other states rely on federal laws.
Victims of sexual harassment must report all incidents to their human resources department to create an official paper trail.
This documentation is also necessary when victims file a complaint with the EEOC, and when they decide to file a civil lawsuit against their harasser.
The idea is that by documenting the existence of a hostile work environment, victims can show that they didn’t feel safe and protected at the workplace.
Differences Between Sexual Assault and Sexual Harassment
There are several major differences between sexual assault and sexual harassment, including the fact that sexual assault is a criminal offense and sexual harassment is handled under civil law.
This means that people accused of sexual assault face prison sentences, but people accused of sexual harassment face civil penalties that could result in fines and the loss of their jobs.
Another difference is that sexual assault is always handled in a court of law, whereas sexual harassment is typically handled through a hearing with the EEOC.
Definition of “Consent” In Illinois
In the Illinois law addressing criminal sexual assault, “consent” is defined as:
“a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent.” 720 ILCS 5/11-1.70(a)
The law also states:
“A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct.” 720 ILCS 5/11-1.70(c)
(Source: P.A. 96-1551, eff. 7-1-11.)
And then we have the teenagers……
When teenagers begin to date, usually they meet at school and most often, they are the same age. As teens branch out however, meeting people from other schools, hanging out with people from work and meeting new people in the community, they sometimes date older men or women.
When a teenager under the age of 17 dates someone that is 17 or older in Illinois, the relationship can get complicated.
Statutory rape is any type of sexual intercourse that occurs between someone under the age of consent, which is 17 in Illinois, and someone that is a legal adult (18). Essentially what this means is that if someone under 17 and someone 18 or older in Illinois willingly have sex, charges can still be filed against the older person because the partner is a minor.
Although this law typically pertains to men and women that are significantly older than their underage significant other, it also technically applies even to high school students who may only be a couple months apart in age. In those few months in which one partner has reached the age of consent while the other has not, they are committing statutory rape when participating in sexual activities.
More often now than ever, high school students are having sex. It may be from peer pressure and it may also be attributed to the fact that kids are simply growing up faster than they used to, physically and mentally. If you are a teen or if you have a teen that may be considering having sex, be sure that he or she understands the seriousness of the activity.
Not only is sex a big deal mentally and physically, but also emotionally, and it could be legally too. Most parents will not press charges against their son’s or daughter’s boyfriend or girlfriend if they are just a year older, but older people may get into more trouble. An underage person having sex, even with a significant other, who is much older, is putting that significant other at risk of getting in trouble with the law.
If you are charged with sexual harassment, criminal sexual assault, statutory rape or any other form of rape, or perhaps you are considering charging someone else with sexual harassment, sexual misconduct, criminal sexual assault or rape, you can contact me for help. I will help you through the court process to get the outcome that you want. Call me, Roy F McCampbell at (708)878-7957 (24 hour number)
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Is Illinois’s Budget Real ? Or a Political Convenience ?
Illinois budget watchdog groups are skeptical over whether the $38.5 billion fiscal 2019 state budget that passed Thursday is truly “balanced” .
Lawmakers from both sides of the aisle should restrain their self-praise about the budget plan given that it failed to deal with the state’s $129 billion underfunded pension quagmire and its $7 billion bill backlog.
The budget relies on $240 million from the long stalled sale of the state’s downtown Chicago headquarters, and $445 million in savings from three pension reform measures, including two buyout offers. The pension savings, if they materialize, would bring the state’s payments next year down to $7.3 billion.
The budget documents are also short on details on $1 billion of borrowing authorized to pay for the buyouts and how that financing would be repaid, Msall said.
The budget also doesn’t account for what the state has estimated is a $300 million tab to cover step raises based on employees’ experience, which the state had withheld during contract negotiations. The courts have ordered the state to make good on the back pay and lawmakers during the budget debate acknowledged the cost would eventually need to be incorporated in the budget.
The budget leaves the unpaid bill backlog to linger. It hit a high of $14.7 billion last year as bills mounted during the impasse and has since been whittled down to about $7 billion with $6 billion in bond borrowing, the leveraging of federal funds, and inter-fund borrowing. The state has paid more than $1 billion in interest for bills that went unpaid during the impasse.
Lawmakers approved legislation Thursday that allows the state treasurer to use up to $2 billion of available state investment dollars to pay down the backlog at a few percentage points of interest compared to the 9% to 12% currently paid. The budget implementation bill incorporates savings from at least $1 billion in treasurer funds going to pay down bills, according to lawmakers.
While analysts digest the budget’s details, the market has already weighed in. The state’s spreads to the Municipal Market Data’s benchmark had narrowed to 185 basis points on Wednesday from 202 bp on May 1.
IHS Markit said late Thursday trading was heavy with spreads of 169 to 176 bp seen in maturities up to 11 years. Spreads were at 194 on May 23, said IHS’ Edward Lee.
Moody’s Investors Service and S&P Global Ratings give the state’s general obligation bonds their lowest investment grade ratings, with Moody’s assigning a negative outlook and S&P a stable outlook. Fitch Ratings is one notch higher at BBB and assigns a negative outlook. The rating agencies have not yet commented on the budget package but Moody’s issued a special report Thursday warning that action is needed soon to tackle Illinois’ rising pension, retiree healthcare, and debt costs.
The House gave final approval to the budget early Thursday afternoon in a scene different from the partisan bickering that’s dominated budget discussions. The House voted 97-18 on the budget bill. It voted 100-14 on a companion bill needed to execute the spending in the appropriations bill.
Only in Illinois would a major election year bring at least a modicum of normalcy, with lawmakers approving a full-year state budget both Republicans and Democrats call balanced and one that Gov. Bruce Rauner will approve.
We live in a trust-challenged environment under the dome, Democratic state Sen. Heather Steans noted at the Capitol before lawmakers easily approved the $38.5 billion spending plan.
Helping to build trust was the desire on all sides to avoid an election-year repeat of the confrontations that sparked a historic budget stalemate that weakened social services and higher education. Those conflicts last year led some Republicans to join Democrats and override the governor’s veto of an income tax hike and spending plan.
Now, Rauner’s office has invited legislative leaders of both parties to the Thompson Center on Monday for a budget-signing ceremony.
The Illinois Senate approved a bipartisan budget deal that invests in public education at all levels and balances through targeted savings, reforms and utilizing existing state revenues.
“This is an important step forward. This budget helps restore stability to Illinois, which is what we need. There remains more work to do, but this is a bipartisan accomplishment that we can hopefully build upon,” said Illinois Senate President John J. Cullerton.
The budget was negotiated by bipartisan working groups, finalized by legislative leaders and then approved in a bipartisan vote that signifies, at least for now, an end to years of partisan budget fights that decimated universities, human service providers and ballooned the state’s debt.
The state’s operating budget totals $38.5 billion, which is a $600 million increase over the current budget. That increase is largely due to education funding increases and making required pension payments.
The proposal won Senate approval 56-2. It now goes to the Illinois House.
Highlights include …
Education:
• $350 million increase in K-12 education to honor the commitments made when lawmakers overhauled how the state funds public schools last year. The new funding formula ensures every school district will see an increase.
$50 million increase for early childhood programs.
The budget deal does not include shifting millions in state pension costs onto local school districts.
State support for the retired teacher health insurance program (TRIP) is maintained.
Higher Education:
• Higher education sees a 2 percent increase after years of budget cuts. That translates into a $25 million increase for public universities and community colleges.
In addition, the state creates a $25 million scholarship fund to be matched by public universities and community colleges. The goal of this new tuition assistance program is to keep Illinois students in Illinois attending Illinois schools.
The budget deal does not include shifting millions in state pension costs to universities and colleges.
Human Services:
• The budget includes and funds a 50-cent wage increase for caregivers who work primarily with developmentally disabled individuals.
Numerous human service programs including those addressing epilepsy, autism, youth employment, addiction treatment and community mental health had been cut if not zeroed out in the governor’s budget. They are funded in this budget deal.
Local Government:
• Local governments would see a nearly $120 million increase over the current budget.
A 10 percent cut in the Local Government Distributive Fund in the current budget is reduced to a 5 percent cut. That results in a nearly $100 million increase for local governments.
The existing budget also implemented a 2 percent administrative fee for the state processing sales tax revenue for local governments. That fee is reduced to 1.5 percent in the FY19 budget. The result is an increase of nearly $20 million going to local governments.
Financial details:
• A more than $1 billion budget hole wiped out through savings, reforms and utilizing other available revenues.
The state is authorized to tap into up to $800 million sitting available in various state accounts. This allows the state to utilize that money now to fund programs and services and pay it back over the next two years.
A series of voluntary pension reforms are projected to bring in $445 million in budget savings.
Those reforms include:
• Inactive buyout: Former public sector workers vested in the program and owed an annuity when they reach the qualifying retirement age would gain the option of cashing out now for 60 percent of the value. Savings estimated at $41 million
COLA buyout: Tier 1 employees owed a compounding 3 percent COLA in retirement would get the option of having the state buyout the compounded COLA for 70 percent of the value. Savings estimated at $382 million.
Pension spiking: End of career raises would be limited to 3 percent, currently 6 percent. This means if school districts award end of career raises in excess of 3 percent, the retirement system charges them to cover the increased expense to state taxpayers. Savings estimated at $22 million.
Tucked inside the 763-page budget implementation bill adopted by the Illinois House today is a provision that imposes penalties on school districts entering into contracts and collective bargaining agreements that provide TRS members with end-of-career increases in excess of 3% per year. This reduces the current limit of 6% per year. The provision applies only to contracts or collective bargaining agreements entered into, amended, or renewed on or after the effective date of the legislation. However, given that the Senate already passed this bill and the effective date will be when the Governor signs the legislation, there may be a small window before the penalties go into effect.
There are multiple implications of this provision for employers to consider. The penalty applies if the amount of a TRS member’s salary for any school year used to determine the final average salary exceeds the prior year’s salary by more than 3%. If the salary increase exceeds the 3% limit, the employer must pay a penalty to TRS equal to the present value of the increase in benefits resulting from the portion of the salary increase in excess of 3%. Employers should also keep in mind that creditable earnings include more than salaries. They also include extracurricular pay, stipends and contributions to tax-deferred retirement plans, among other payments. Finally, the average salary for Tier I employees is calculated using the four highest, consecutive annual salary rates within the last 10 years of creditable service. For Tier II members, the average salary is the average of the eight highest, consecutive annual salary rates within the last 10 years of creditable service.
Again, this legislation does not change the law for current employment contracts and collective bargaining agreements. Only new and modified contracts will incur the penalty. Therefore, employers should carefully review any new and modified contracts to ensure they are in compliance.
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