- We're coming to you from Kansas University. I'd like to thank you for joining us tonight for A Feminist Perspective. This weekly reading broadcast is sponsored by the women's resource and career planning center. A program and information service of the Dean of women's office, 220 Strong Hall. Located in the women's resource and career planning center, is a large lending library which contains vast amounts of information. News clippings, government documents, films, tapes, magazine articles, research studies, and books pertaining to the many aspects of the women's movement. The material and the resources in the women's resource and career planning center is as valuable for men as it is for women. Since sex role definitions and stereotypes can affect both sexes. So we would like to invite you to come in and browse, talk with our resource people and take advantage of the lending library. In 220 Strong Hall at the university of Kansas. Tonight's program is the concluding program of a four-part series on choice and sexuality. We've considered the values related to sexuality and the decision making process to be sexually active or not. We've considered the various choices and the decisions related to means of contraception. We've considered some of the informal infringements on choice for women, such as social norms and seduction. Tonight our topic is the law and choice and sexuality. We have three guests this evening. I'd like to just read a little something that Clarence Darrell once said as an introduction to two of our guests. And speaking of women lawyers, he said you can't be shining lights at the bar because you are too kind. You can never be corporation lawyers because you are not cold blooded. You have not a high grade of intellect. You can never expect to get the fees men get. And I doubt if you can even make a living. Well that was 40 odd years ago, times have changed and we have two law students from the university of Kansas law school. We have Carlin Loring and Janine Harrop. Would each of you introduce yourselves and just say I'm not sure what year you are or what your eventual interest is. - I'm Janine. I'm a first year law student. I think I would probably get into feminist law. It's something that I've recently become interested in and that I think would be a viable option in the legal career. - I'm Carlin, I'm a first year law student and I'm planning to go into some areas of feminist law with emphasis on title seven work, hopefully - Our third guest this evening is David Berkowitz, County attorney for Douglas County. Mr. Berkowitz would you identify yourself a little bit? Tell us what you've been doing. - My name is Berkowitz and of course my job is basically to prosecute criminal acts which take place in the Lawrence or Douglas County area. - All right. I think that I have a lot of questions for this evening that I'd like to throw out in considering law in all areas of sexuality and how that influences specifically the choices that women make. Let's start out with the age of consent. Our first radio program in the series had to do with how a woman probably should consider a decision whether she is sexually active or not and not say this is just something that happened to me. But rather make it a decision-making process. What laws should she keep in mind if she's making this kind of decision. - Of course, there's the statutory rape law which has recently been changed. The consenting age was 18, consenting age is now 16. So I guess if you're 16 you cannot be statutorily raped. - And that means you can't have intercourse, period if you are not 16 or else it's against the law? - No, excuse me go ahead - Just the other way. It's against the law for someone to have intercourse with a person under the age of 16. It's not necessarily against the law for the person under the age of 16 to have intercourse. - Ah. So if both people are under 16, if you have a 15 year old boy and girl are they both criminal in this case? - Well, they could be. But the point is if they're both under 16 they'd be in the juvenile court and peak juveniles by law can't commit crimes. - But they can be sent to jail in a sense, for sexual promiscuity, if they're juveniles? - They could be yes I suspect. But I think since the statute is entitled indecent liberties with the child, of course you wouldn't- It'd be pretty hard charge one child with indecent liberties with another child. Actually though if you were over 16, and you could have sexual intercourse with your spouse, if your spouse was under 16 that's excepted out of the statute - Uh huh. What would you say is the general intent or idea behind the age of consent? Especially when we're considering that there is a female child defined by law who is giving her consent. This is something she wants to do. To be devil's advocate. Just where does the law get off in making these kind of decisions for people? - Seems to me the general tendency of the law that the law should protect women from themselves as well, as well as from others. I think the statutory rape gets off at that point. That the woman who's under 16 isn't capable of making a choice for herself. Isn't capable of consenting. - When you're also talking about a woman as a child, you know they're regarding women under the age of used to be 18, now it's 16 as incapable of giving their consent. You just couldn't give your consent if you're under a certain age. - It's interesting in the law often women are classified with infants and idiots. - Yes, but in this particular case, that isn't true because it doesn't say woman, it doesn't say statutory rape. It says indecent liberties with a child. Now rape, of course can only be committed by a man against the women. But in these similarities with the child could be committed by a woman against the boy. And I think the state is simply is drawing a line and saying that it has vested interest in the well-being of all children and before a certain age. And of course it has to be arbitrary. Children simply are not mature enough to make this type of decision for themselves. Now, I don't think anybody's saying the children at the age of eight should be able to vote. Well, it's the same sort of thing. You might argue at the age but I don't know you should argue at the principle. - And as it is written in the law is definitely not sexist. But I know that in my mind whenever I hear statutory rape I automatically think of a younger woman. I don't believe I have ever heard of an older woman being charged with statutory rape for assaulting a boy. - Or indecent liberties. Do you know of any prosecutions? - No I have to say that I do not know of any prosecutions of women having sexual intercourse, defiling or touching a male child under the age of 16, no. - I think that most people would would agree that certainly the state has an interest in the protection of children. I am familiar with also the age of consent is used in the area of contraception. For example, the family planning law in Kansas believe says that it is illegal to disband this information even relating to contraception to persons under 18 years of age. I know that Planned Parenthood throughout the country has been saying that this is not in the best interest of children. Many of whom are sexually active and not having access to contraceptive information is not protecting them. Am I correct? Do you know, is 18 the age here in Kansas, for that sort of thing? This is an informal discussion so I don't mean to put you on the spot as far as citing specific law numbers or anything but do you believe that informed consent is practiced or is practicable for example, a 15 or 16 year old person who declares they are sexually active goes to a physician requesting contraception. At this point, if that physician legally gives them that information they're in violation of the law. - I think you're going to have some kind of age cut off. Maybe 18 is too long, but I think there comes-- You know I think society still regards people under a certain age as incapable of taking care of themselves and making their own decision. And if you change the age you going to still have to have some kind of limitation. I would imagine whether that should be 14 or I think one could argue that the sexual mores in the society have changed. So they're putting an 18 age limit on acquiring contraceptive information is unrealistic. And it also, I think that particular age hits women harder than men because of the-- It's much easier for a male to buy contraceptives in a filling station or say at any age than it is for a woman to go in and see a doctor if she's a teenager and get contraceptive information or even buy contraceptives in the drug store. - That's a good point. Well, let's leave the age of consent just for a moment and move into a more formal type of situation in consent. And that is the marriage laws. I happened to be looking at a publication put out by the state of Missouri in 1971, which said in Missouri a woman could be married without anyone else's consent at age 18. But a man had to be 21 to get married. I'm not aware of what the law is in Kansas. - Until recently it was the same. I'm not sure when the law was changed but as I understand it now, the age of consent for marriage is 18 for both male and female. - Yes it was changed when the 18 year old vote came in. Yes, it's the same now. And there's actually, there also used to be a lower limit of marriage even with parental consent. And there isn't any now. - It's 18 for both as well? - Yes 18 without parental consent nice. And any age with parental consent - Is it, oh it's 18? - I think it's interesting to note the reasons for a law like Missouri's. And usually the attitude is that for woman the marriage state is the ideal state. That's what every woman is pointing to. And for the male, he is to be educated. And so the law will protect him until he's 21 prevent him from marrying without his parents' consent. I think it testifies society's attitude toward women and women's roles. - Strong belief that the man is going to enter the market place and he's going to need more education and more maturity to support a family financially. And that a woman's maturity is limited almost to the house work and raising and rearing children. And she can start that at a much younger age than a man could. - Oh, I think it speaks very well of Kansas now that they have corrected that inequity. Something else that I've been wondering about, related to marriages. It's usually assumed that a marriage is a legal state entered into by a male and a female. Now across the country, there have been quite a few cases of same sex people attempting to be married and sometimes succeeding in being married. Of course, the option of homosexuality is always an option for people. You might say a form of choice. What is the status in Kansas about same sex marriages or same sex, let's leave it at marriages for right now. - To my knowledge there's no law against homosexual marriages in Kansas. Do you know about that? - Well, I really never thought about it that much because it's never really come up in my practice anyway. I would think, however, that you would probably have a difficult time in getting a marriage license. And I suspect if you go back through the case law that probably marriage is somewhere defined as between a man and a woman. - Have there been any challenges to that in Kansas that you know of? - Not that I know of, no. - There was a couple in Wichita who went in to get a marriage license, it was refused. And I think they just dropped it at that. - Of course the status of homosexuality can not be illegal. I think the Robinson decision from the Supreme court of same sex marriage. - I mean if someone declares I am a homosexual. They cannot be arrested simply for that declaration. - The Supreme court, I think has decided that. - But if you practiced homosexuality? - The act of homosexuality can still be illegal as I understand it. But then the government runs into trouble in trying to prove that act because they run into invasion of privacy problems. They try to get information about it. So I really doubt that there can be much proof along those lines. - Yes so that would be correct to the act of sodomy itself is illegal unless you're husband or wife or consenting adult members of the opposite sex. But being a homosexual isn't per se illegal. And of course the problem is, is being able to prove that without almost one or the other, the partners decides to turn. It would be an almost impossible tact of a crime to get a conviction on it. - You're referring to the sodomy statute? - Mm hmm. - Right. I think there's an interesting question there about whether lesbians can ever commit the act of sodomy. Because this isn't in the statute, there's something referring to penetration. - Yes that is a good point. And frankly I think probably it says-- Well, they could commit-- No it does say oral or anal copulation and it would probably be impossible. - Mm hmm. - Unless they used a-- It'd be pretty difficult anyway. - So this here is one area where biology again that differences, but in this case protecting women. - Indirectly. - Indirectly I started to think well especially if marriage is made impossible for people of the same sex, what other kinds of options for any sort of relationship in society or in the eyes of the law do they have available? And that leads me to think of cohabitation just living together in an enduring relationship, living together under the same roof without being married. Of course this has implications both for heterosexual and homosexual couples. - Right and there is a statute in Kansas on unlawful cohabitation. Which is defined as living together without being married. It's classified a misdemeanor with a penalty of not less than 500 or more than a thousand dollars or not less than 30 days or greater than three months. I don't imagine that it's enforced. - I remember reading within the last month, an article by Barclay Clark, from his position as one of the commissioners saying that we did have that ordinance on the books, but that to his knowledge it was not enforced. Mr. Berkowitz have you been called upon to prosecute cohabitation cases or? - No, I never have. I think there was one once a few years ago in the city court. There is a city ordinance and a state ordinance and there could be some legal arguments as to whether the state statute is still effective. That there used to be the common law crime of fornication on the statutes of Kansas. And that wasn't included when the, in 1970 when the new criminal code was passed. And that is about the same thing as illegal cohabitation. Because it obviously isn't illegal for two people to live together or you couldn't have roommates. - Mm hmm. So oh that's a good point. But does the sex of the roommate make any difference in a rooming situation? - The statute doesn't refer to to sex at all. - Hmm. - Just I would think its anybody. - It's not very well written. - I think really, again you have to go back into the case law and the common law and probably find that illegal cohabitation would in fact be pretty much the same crime as fornication. And then you would have the question of since the legislature didn't include it, did they in fact mean to not make it a crime anymore? - Well, from everything that I've been reading it's becoming more and more common. I was speaking with a researcher from Cornell university who did a study of the senior class at Cornell and found that 92.3% of the women in the senior class at Cornell had cohabited. And she had rather stringent definitions of cohabitation which were spending at least four or more nights of any given week for a period of at least three months in the bed or bedroom of a member of the opposite sex. And by the time they had reached their senior year well over 90% of the women in the senior class at Cornell had fit that definition. And of course, if they had cohabitation laws then they were breaking the law. Another interesting group that I've been reading more and more that are going in for cohabitation is the senior citizen group. The people in their late 60's, and their 70's who find they are companionable. And they choose to spend their time together. But if they get married their social security benefits go down. And so they just move in to each other. And of course, Ann Landers has had a few letters scandalized because the grandparents were moving in together being unwed. But that sort of thing, technically if someone would file a complaint here in Lawrence it could be at least brought to court and perhaps thrown out, but-- That's someone's-- - You'll get a prosecutional discretion on that don't you? - Someone can be arrested technically for that? - Well now they could be arrested for it but only if the police officer actually saw it taking place Otherwise they'd have to go and get a warrant - Uh huh two names on the same mailbox. - No, that wouldn't be enough. - All right maybe a lot of people can rest easy this evening. - I hope so. - All right, there is certainly another area where law and sexuality and choice overlap quite a bit. And that is in the area of rape. In fact, I think that choice might be the central point here. Doesn't the definition of rape hinge around whether this was the women's choice or not. - I'll read the rape law to you, the Kansas rape law. Rape is the act of sexual intercourse committed by a man by a man with a woman, not his wife and without her consent when committed under any of the following circumstances that goes into forcible rape, when a woman's unconscious, when she's drugged or when she's incapable of giving her consent for reasons of mental deficiency or disease. So yes, consent is an element of it in the Kansas law. - I had never heard the law. I find that I am surprised. It appears it would be impossible to charge a woman with rape then. - It would be. A woman can't rape a man under the laws of the state of Kansas. - I think it's also interesting to point out that a man cannot rape his wife. And it's, I think a problem with the law, it needs changing. - I think one of the inferences that I would make from the way the law is is that if you are married, then this is an obligation of a woman and-- - Precisely. - You have no choice. - I'd like to ask David a question about this on the trial level. In Kansas, it is admissible to bring into evidence the past sexual history of the woman, is it not? - That would depend, I think, entirely upon the facts in the case, if the facts of the case was that the defense was going to be consent. And in some cases that can very well happen then possibly that would be admissible. If on the other hand you have a case of a person who's a stranger. The victim is a stranger to the defendant, it would have no bearing at all. - Does that rest on the judge's discretion as to whether he will admit this kind of testimony? Is he going to be the one who says that's relevant or not relevant because it's not carried specifically in that statute if you're just talking about identification and her past sexual history is totally irrelevant. What are you going to do if you run into judges who say, well I think it's relevant? - You could. Because ultimately it's up to any judge as to what he's going to allow or not allow into the case. Provided of course that the defendant can always appeal and get a new trial. But I would think that most judges would exclude that type of evidence unless it really was a bonafide part of the defendant's case. We had a case where the defendant and the victim had been recently divorced. And there was some discussion as to whether or not they had had sexual intercourse since the divorce, other than the one that he was charged with. Which I think was relevant to that particular case, to show that in this case it was consent as well. Or indicate anyway. - I'm thinking of a quote that I read from another prosecuting attorney, it was in a national magazine saying that the best kind of victim to have so that you won't have to face this choice question is to have an 80 year old nun, in a wheelchair whose skull was fractured during the assault. And if all of those circumstances are met then you probably won't have to worry about the defense bringing up the idea that she gave her consent anyway. - That example, I think is indicative of just how difficult it is to get a conviction on this. And a lot of it, I think, is a problem with the law. I don't think that past sexual history should be admissible at any point. I also think the law should recognize and the drafting of the law should make it explicit that rape is a crime of violence and not a crime of sex. And you get into drafting problems with that but it is the kind of thing that is very important when you get to the trial level. - Well, I think that I can't agree with you. I think that if you could show that at three o'clock they had an act of sexual intercourse with consent at 3:30, there was a rape and at four o'clock they had an act of sexual intercourse with consent that that would be perfectly admissible for defense. - I don't think it is, I disagree. - Well, I think it would, it would certainly tend to impeach the credibility of the witness. You've got to remember of course, it's always possible that the prosecuting witness is not telling the truth. And that's why we have trials. If the prosecuting witnesses were always telling the truth you wouldn't need-- - But the rape itself. - A trial. - Is forcible. - That's right. - To me it's approximate. - Well you can consent to an act at one time where you're not talking about your it was a 30 minute difference, but yeah I can certainly see situations where there'd be consensual sexual intercourse at a particular time. And maybe two weeks after sexual intercourse could occur there was not consensual at all. - Oh certainly. And it could even occur in the 30 minute period. But all I'm trying to say is if you're talking about our system of law, where a person must be proven guilty beyond a reasonable doubt. I think that under certain circumstances this could be admissible. The real problem, I think in rape prosecution is you almost always talking about one witness against another. One witness says yes, this person raped me. The other witness says no, I didn't I wasn't there. And it's usually at night and it's usually a traumatic experience where the victim is not at the best position to make observations. And so there you have it and that's really your difficulty in rape prosecution. - You think identification then is more of a problem than consent? - I think in most cases. - I'm wondering about transferring it to another area. For example, car theft. I'm even familiar where parents have charged their children with car theft. There was a clear relationship. And there had been previous times when they told the kids you can take the car, but this time they told them you can't take the car and the kid takes the car anyway. And so the parent brings auto theft charges against the child. - Well, you have to understand when you're talking about rape you're talking about something that's completely set aside in the law from all the other crimes. Assault. If somebody assaults you, comes and mugs you, takes your money. Then you don't have resist to the point that you're physically hurt that you have bruises or whatever. But in most rape prosecutions, it's almost necessary that you have some evidence of physical injury to get a conviction on forceable rape. - Well, I would suggest however that we had 11 women and one man on the jury that kicked this one guy loose. So maybe you better educate the public. I think you can certainly bring it to trial without bruises. I would assume, I would think bruises would help the prosecution's case. - I think that was partially Janine's point. Was that the public attitude at least certainly in the past has been that unless there's a lot of brutality and a lot of scars or scratches or physical evidence of real violence that the woman had a great difficulty in being believed by everyone, the police, the jury, the judge, anyone. - I'm not that familiar with the trial court level of it. I have read some appellate court opinions though and familiar with comments coming out of the appellate courts. Such as she didn't exercise her pelvic muscles. Insufficiency. Or in one case, the guy had the woman down, had his hands around her throat had his knee on her stomach, had her arms behind his back. And the judge just said, even after there was a jury conviction said, well she didn't cross her legs. That's the kind of thing you're dealing with. It's just, I think rape is looked at differently in the law from other crimes of violence because it's not seen as a crime of violence. It seen as a crime of sex. - Well, I don't think that's the way it is. I hope that's not the way it is in Kansas or we'll never get a conviction. I don't think you have to resist to the point that you're going to be hurting. In fact, it says when the resistance is overcome by force or fear. So she doesn't have to resist at all. - I think that public opinion is changing, is growing. And some of the things we reviewed today the laws of Kansas have been changing too. It's good to hear. We could go on for this, but our time is up. I'd like to thank our guests, Carlin Loring, Janine Harrop and David Berkowitz very much for joining us this evening on A Feminist Perspective.