Response to "Yes Means Yes"
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: jcall@radford.edu
My friend, Mike Weiss, has made an interesting response to my article “Has Virginia Just Become a ‘Yes Means Yes’ State?” In his response, he points out that “[i]n April of 2014, language was added to [§18.2-67.4 of the Code of Virginia], requiring, before any conviction, the perpetrator must have sexually abused ‘within a two-year period, more than one complaining witness or one complaining witness on more than one occasion intentionally and without the consent of the complaining witness…’”.
I was unaware of this amendment to §18.2-67.4. Admittedly, it has caused me to rethink to some extent the arguments I advanced in my article. My basic contention in my article is that I agree with the dissenters in the Robinson case that the logical extension of the approach taken by the majority is to make force immaterial (for all intents and purposes) in sexual battery cases (and by extension, in all sexual assault cases, although that is my contention – not the dissenters in Robinson).
What is troubling (for my argument) about this amendment is the language “without the consent of the complaining witness.” This language seems to suggest a desire on the part of legislators to extend criminal liability to a repeat offender who engages in nonconsensual sexual battery twice within a 2-year period. However, if my analysis (and that of the dissenters) is correct, a first time offense would now result in liability under (i). This would seem to make (ii), the new language, unnecessary.
The other troubling aspect to this new language is that, given the logic described in the previous paragraph, why didn’t the judges (including the dissenters) discuss the significance of (ii) in their opinions in Robinson? The new language seems to me to be clearly relevant to the discussion – especially to the conclusion reached by the dissenters (in a footnote, interestingly) that the “logical extension” of the majority opinion reasoning is to make “any non-consensual touching of an intimate body part … sufficient force to overcome a victim’s will.” Why would it be necessary to add a provision that addressed nonconsensual sexual battery explicitly if such behavior was already covered by another part of the statute? If one concludes that it would not be necessary, then it would appear that the majority opinion in Robinsons is inconsistent with the intent of the legislature. That is, it would appear that the General Assembly did not intend to make all nonconsensual sexual touching a violation of §18.2-67.4(i).
I concede that this new information weakens the arguments made in my initial article. Nevertheless, I have to take seriously what the dissenters said in their opinion. They clearly believe that the majority opinion essentially eliminates the force requirement in sexual battery cases. They either did not notice the new language added to §18.2-67.4 in 2014 (like me), or they do not find persuasive the logic I have described above. Either way, I think the basic conclusion reached in my initial article holds.
Before I read Mike’s response to my article, I was already inclined to think that this is a case the Virginia Supreme Court will want to hear. This new information from Mike strengthens that feeling on my part. I also thought previously that there was a very good chance that the Virginia Supreme Court would reverse the Court of Appeals’ en banc decision. I think that that is even more likely now, at least if the prosecution raises the argument that the addition of (ii) suggests that the General Assembly did not intend for (i) to make all nonconsensual sexual battery a crime. If the Virginia Supreme Court does take the case and upholds the en banc decision, it will be interesting to see what, if anything, the General Assembly does in response to that decision. Given the fact that the Democrats are about to regain control of the General Assembly, my guess is that the legislature won’t do anything.