Understanding the Sexual Assault Allegations that Rock Capitol Hill

The latter half of 2017 has been a tsunami of sexual assault allegations against prominent politicians and Hollywood men. In most states, sexual assault is unconsented intention sexual contact for sexual gratification. These allegations have dire political consequences and potential legal consequences. Al Franken may soon be under Congressional ethics investigation, Roy Moore is taking a beating in the polls of his Senate race, and Trump is still President.

However, not all sexual assault allegations are created equal. But to prove a crime, prosecutors must show that the defendant committed the act with a criminal intent. For example, if the defendant hits another person with his car because that person owed him money, then the defendant is guilty of vehicular assault.  If the defendant hit the victim by accident, then there would be no intent and thus no crime. If the defendant didn’t hit the victim, then there would no act and thus no crime (with exceptions for attempted crimes).

Regardless of the political costs, the legal fallout will be different for each man based on the evidence and the potential criminal charges each man might face.

Roy Moore

Roy Moore faces the most significant potential criminal charges: sexual abuse with a minor. Under Alabama state law, 1st degree sexual abuse is a Class C felony. A conviction can result in up to ten years in prison, a $15,000 fine, and registration as a sex offender. Although the statute of limitations for crimes is usually five years in Alabama, child sexual abuse is one of the crimes that is exempt from the statute of limitations.

capitol hillFortunately for Moore, the evidence against him is the weakest of the three cases. Other than the accusers’ testimony, the only evidence that exists is circumstantial evidence. The yearbook proves that Moore was lying about not knowing the alleged victim and the ban from the mall collaborates Moore’s admittance that he liked to date girls who were barely legal. However, neither proves that Moore had sexual contact with a 14-year-old girl or attempted to rape a 16-year-old. The yearbook suggests that Moore thought of the 16-year-old in a sexual manner, but it’s unknown whether Moore tried anything beyond being a creepy and egomaniac Assistant District Attorney.

Al Franken

Senator Franken could be indicted with fifth degree criminal sexual conduct, whereby he engaged in nonconsensual sexual contact, which is a gross misdemeanor. It would not be a higher degree because there are no allegations of penetration and there was no reasonable fear of imminent physical harm, since there were other people around and the accuser was asleep. A conviction would lead to one year in prison and a $3,000 fine for first time offenders.

Franken’s case involves strong evidence outside the accuser’s testimony: a photograph where Franken is grabbing or attempting to grab the accuser’s breasts. Going back to the elements of a crime, the photograph is evidence of a sexual act, though no intent is established. The fact that the accuser was wearing a bullet proof vest is of no significance. The photographer, Franken’s brother, testifies that the photograph was taken in jest and that the accuser was actually awake and in on the joke.

Franken’s best defense, if the accuser’s testimony is discounted, is that he did not touch her for sexual gratification. Most states define sexual assault as unconsented intention sexual contact for sexual gratification. It is legally possible to intentionally touch someone’s sexual parts without consent if the purpose was not for sexual gratification.

When might that happen? If a woman fainted and a man was trying to resuscitate her by performing CPR, he would have to touch her mouth and chest. CPR would require intentional non-consented touching of otherwise private body parts, but most states would not prosecute for sexual assault because the CPR was done for non-sexual purposes.

The example is extreme, but if the sexual contact was not for sex, there cannot be sexual assault. If Franken grabbed the accuser’s breasts while she was asleep as a joke, there would no sexual purpose and he would not have committed sexual assault (though assault and battery would still be an issue).

Obviously, we cannot excuse every allegation of sexual assault as a joke. In Franken’s case though, there are facts that do support the argument. He had a long career as a comedian prior to becoming a senator and these allegations occurred during a Saturday Night Live skit. I am not excusing his conduct; his behavior was appalling and he should resign his Senate seat. However, there may not be enough evidence to convict Franken of a criminal offense.

Donald Trump

The allegations against the 45th President are well documented now. Trump is the opposite of Franken in many respects. The now infamous “pussy grabber” Hollywood Access video shows that Trump has criminal intentions, even if there is no evidence of sexual acts other than the testimony of the women against him (in contrast with the photograph of Franken’s act, but without an intent to prove it was sexual).

The White House is insistent that Franken should be investigated, but Trump is absolved because Franken has apologized while Trump (and Moore) have denied all allegations. There’s two things wrong with this logic. First, denial does not mean one is innocent. There are thousands of prisoners who have pleaded not guilty and have never confessed to a crime. Second, we should have higher standards for our elected representatives.

We might assume that men are innocent until proven guilty in a court of law, but that is not the standard for employment. If a hiring manager at a McDonalds or Walmart had any doubts about whether an employee had sexually abused or harassed women in the workplace, that employee would be terminated. Why do we have lower standards for Senators and the President of the United States than cashiers at retail stores or fast food restaurants?  Men like Trump, Moore, and Franken have no business representing us and they should all resign.

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