Is it sexual assault?

Steve W. writes:

Perhaps the most frustrating aspect of the Cain-Bialek story is how many people (including Charles Krauthammer) confidently assert that, if the story is true, Cain “sexually assaulted” Bialek. Nonsense. Assuming the story is true, he did no such thing. He simply made a sexual pass at her. He touched her on the leg and motioned for her to give him oral sex. He did not force himself on her or force her to do anything to him. When she said “no,” he stopped his advances and returned her to her hotel. Nothing in Bialek’s story supports the accusation that Cain “sexually assaulted” her, or even sexually harassed her.

Indeed, it seems obvious that there’s more to this story that Bialek isn’t telling and that Cain can’t tell. Consider: She flies to Washington to meet with him; they meet for drinks in her hotel lobby; they have dinner at an Italian restaurant; Bialek tells him that she is meeting with him “because I really need a job”; they end up inside Cain’s car, supposedly because he was going to show her his offices, at night, after hours (yeah, right); then he “suddenly” gropes her, etc. Assuming Bialek’s story is true, she obviously was flirting with Cain and using her feminine charms to get a job, and Cain was taking the bait; they probably started kissing and fondling in the car, when she had second thoughts about what she was doing and decided not to go through with it; Cain respected her decision and returned her to her hotel. Cain may have displayed bad judgment and betrayed his marriage vows, but he did not sexually assault or sexually harass Bialek.

LA replies:

Since the question you raise is the nature of Cain’s behavior assuming that Bialek is telling the truth, I must point out that you are understating the behavior as Bialek described it.

Also, I am ambivalent on the accuracy of calling it a sexual assault. If a man is having a social, non-intimate conversation with a woman which she thinks is mainly about business and he suddenly without warning shoves his hand up her skirt and with his other hand grabs her head pushing it toward his groin, that’s a pretty shocking thing to do. Although, as I said yesterday, it’s probably not a sexual assault in the legal sense, it is an assaultive act.

I am more bothered by the continued use of the term “sexual harassment” to denote any word or action by a man, including a one-time word or action, that a woman doesn’t like. That is an Orwellian misuse of language.

November 9

Alexis Zarkov writes:

The statutes regarding sexual assault and sexual battery vary with jurisdictions. I going to use the California Penal Code as an example because it’s usually more detailed than other states. For example Section 243.4 (e) (1) of California Penal Code states in pertinent part,

Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.

The code defines “touching” in subsection (e) (2):

As used in this subdivision, “touches” means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.

The codes defines “intimate part” in subsection (e) (2) (g) (1):

“Intimate part” means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.

This section of the California Penal Code is somewhat convoluted. Some subsections require the victim be “unlawfully restrained.” This is my best shot at putting the pieces together to fit Bialek’s description of Cain’s behavior. She accuses him of putting his hand under her skirt and “reaching” for her “genitals.” That does seem to constitute sexual battery under the California Penal Code. To fully understand the law in this matter, we would need to research cases to see how 243.4 gets applied, or refer to other authorities such as Witkin’s Summary of California Law which provides an in depth analysis of the whole of California law.

LA replies:

Clearly under the California Penal Code or probably any other state penal code it’s not a sexual assault or sexual battery, because, according to Bialek, Cain did not touch any of the named intimate parts. So this is a no-brainer.

Posted by Lawrence Auster at November 08, 2011 11:25 AM | Send