Will New York soon have a Criminal Law Prohibiting Rough Sex

New York State has pending that may prohibit rough activity during consensual sex. The law was  introduced in response to allegations of violent behavior of former New York Attorney General Eric Schneiderman toward women with whom he had sexual relationships that would make those actions eligible for criminal penalties and even jail. The bill would add a definition of criminal sexual harassment to the state’s penal code, which would define the charge as a class A misdemeanor punishable by up to nearly a year in jail.

It was inspired by the alleged acts of AG Schneiderman, who was accused of committing violent acts against four women in a widely read article from The New Yorker last year that ultimately led to his resignation just hours after publication on the internet.  Assembly woman Aravella Simotas, signed on to sponsor the legislation in her chamber this month, making it more likely to become law by the time the Legislature adjourns for the year in June.

Singas was selected after Manhattan District Attorney Cyrus Vance Jr. agreed to step aside because of an ongoing probe by Schneiderman’s office into his handling of an investigation into sexual assault claims against former film mogul Harvey Weinstein.  Her office undertook a six-month investigation into the allegations from the article that resulted in no criminal charges against Schneiderman—not because the claims were untrue, but because there was no applicable state law that could be used to prosecute him. The law currently only allows criminal charges in cases when the offender’s intent when hitting someone during sex is to “alarm, harass, or annoy” the victim. The victim also has to provide proof that they suffered “substantial pain.” Schneiderman’s alleged actions did not meet those definitions as he was accused in the article of becoming physically violent during sex and on other occasions that either did not meet the definition of a criminal act or happened outside the statute of limitations for those charges. But those alleged actions, while reprehensible, were not eligible for criminal charges under the current state law.

The bill would add a new charge of sexual harassment that could be levied when a person, with the purpose of sexual arousal or gratification, and without consent, slaps, strikes, shoves, or kicks another person. The charge would be a class A misdemeanor, punishable by up to 364 days in jail. It goes without saying, but the legislation would also allowed prosecutors in New York to levy the charge against any perpetrator of domestic violence whose actions may not fit the statutory definition of such a crime. If passed, the bill would take effect this November.

But does this law go to far? Is New York now requiring prior written consent to sexual activity that is common place. While some activity crosses a line, does this new law by dropping the requirement of an injury allow spurious claims in retaliation for activity that was consensual at the time? For example if a couple has rough sex over a course of time, isn’t that consent ? Does the law now allow one partner to  now transform voluntary activity into criminal activity by just complaining and is this going to be the new tool for bitter jilted lovers to get back at their ex boyfriends or husbands.