Law professors discuss sexual assault laws following claims made during presidential campaign

Claims of sexual assault have become daily talking points during the race for U.S. president. Both campaigns and the media continue to make claims about the actions of the candidates. Law professors at WMU-Cooley Law School’s Michigan and Tampa Bay campuses have taken a look into sexual assault laws as they pertain to accusations that are being made.sexual-assault

Tampa Bay Associate Professor Karen Fultz notes that conduct indicated in statements made by Donald Trump, that were recorded for an “Access Hollywood” segment, would be considered nonconsensual and be sexual assault as defined by Florida’s statute.

“The penetration of the genital or other areas of the body is not required to be accused of sexual assault,” said Fultz.  “Intercourse is not the only action that constitutes sexual assault.  Inappropriate touching without consent is also defined in the statute.”

In an open letter to Republican Party Vice-Presidential nominee Mike Pence, Libertarian Party national chairman, Nicholas Sarwark stated, “The recent revelation of your running mate’s bragging about sexual assault flies in the face of everything you, and every decent American, believes in. It is now abundantly clear that Donald Trump does not have the character appropriate to be the next President of the United States.”

Ron Bretz, professor emeritus at WMU-Cooley Law School’s Lansing campus said the recorded admissions made by Donald Trump during a taping could amount to criminal sexual assault if they were more specific. “Trump’s comment was way too general,” he said. “However, the new claims that arose Wednesday night are more concrete. Here we have actual people who claim they were sexually touched without consent.”

Jeffrey Swartz, a former Miami-Dade County judge who teaches courses in criminal law, notes the statements of Donald Trump during the second presidential debate, as Anderson Cooper asked, are an admission to having committed sexual assaults upon women.

“In most states, sexual assaults are ‘crimes of violence’ not just ‘sexual crimes.’  Most states refer to them as either ‘criminal sexual conduct’ or ‘sexual battery,’ indicating the violent nature of the offense and the seriousness of the penalties to be imposed,” said Swartz. “Most states also have, what is known as, ‘rape shield laws’ for the protection of the victim from innuendo and character assassination.”

Professor Brendan Beery, who has taught criminal law and criminal procedure, said that, from a legal standpoint, although Trump’s statements do not constitute a crime in and of themselves, they might describe one.

“The crime of sexual assault has different definitions in different states, but crimes always have ‘elements,’ each of which must be proven by a prosecutor,” said Beery. “In most states, sexual assault would include the following elements: intent; the touching of another person for sexual purposes; contact with the genital area of the other person, or the clothing covering the genital area (or certain other areas); the absence of consent; and force or coercion, including the overcoming of a victim by surprise.”

Beery goes on to say that Trump’s claims to Billy Bush in the 2005 Access Hollywood tape are consistent with elements necessary when prosecuting sexual assault cases.

“They reflect a plan to grab the genitals of women Trump finds ‘beautiful’ in a way that is sudden and unwanted,” said Beery. “Obviously, whether Trump actually did any of these things is contested; his statements, however, do appear to describe criminal conduct.”

Swartz and Fultz agree the statute of limitations in most of the claimed instances have passed.

“The recent allegations against Mr. Trump are serious, but not criminally prosecutable as the statute of limitations has since passed, but the importance of the victims’ assertions should not be ignored,” said Swartz.

“From a civil perspective, the statute of limitations  has passed in the most current claims being made about the Republican candidate,” said Fultz.  “This means the women do not have an opportunity to recover monetary damages.”

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Categories: Crime

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