We recently discussed the federal law, later struck down, to criminalize lies about military honors. At issue was the the Stolen Valor Act — legislation that I have previously criticized (here and here) as a threat to the first amendment. In United States v. Alvarez, No. 11-210, the Court held 6-3 that it is unconstitutional to criminalize lies. Justice Kennedy was joined by the Chief Justice, Justice Ginsburg, and Justice Sotomayor in holding that the Act violated protected speech. They were joined by by Justice Breyer and Justice Kagan concurring but arguing for an intermediate scrutiny standard. Here is the opinion: 11-210d4e9
Singleton seems to want to try to test that line again by moving from lies about military service to lies generally used to get someone to have sex — though the two are often both involved in the classic pickup line at a bar.
The bill (A3908) is poorly drafted and would likely fail on vagueness grounds before even addressing the free speech and association issues. The law covers “an act of sexual penetration to which a person has given consent because the actor has misrepresented the purpose of the act or has represented he is someone he is not.”
“[R]epresented he is someone he is not”? What on Earth does that mean? Singleton is equally opaque in defending the law by saying “You probably would not consent to someone who purported to be a million different things other than they are.” That would presumably include lying that you are single or separated from your spouse.
Tort law already creates a cause of action for lies that result in harm from sexual encounters, including a long list of STD cases. Moreover, there are a few states that have criminalized lies related to sex but not as a form of rape.
Under this law, the liar could be imprisoned for 10 to 20 years in prison.
I have long been a critic of the criminalization of America where millions of citizens are finding themselves labeled as felons for acts that used to be treated as strictly civil matters. The result is that everything is being translated into a criminal offense. This is a far more serious subject than some of the past targets of criminal laws (here or here). However, there remains the question of how we are changing our society by translating all misconduct into crimes rather than allow such cases to be handled in the civil liability system. Even if there is a need for such criminalization, this is not the bill. It is both ill-conceived and poorly drafted. It would be facially unconstitutional in my view in its current condition. The question is where to draw the line between the mildly deceitful on one hand and the criminal on the other. It would also vary widely on whether the other party believed the lie or whether a reasonable person would have discounted it. This law seems to criminalize the junction where the gullible meets the boastful. It would put juries and courts in the unenviable position of defining when a boast is a lie and when a lie was the determinative factor in two people having intimate relations.
Singleton holds a B.S. Rowan University in Business Administration and served previously as Assistant to the Executive Secretary-Treasurer of the Northeast Regional Council of Carpenters. He is the Vice Chair of the Committee on Tourism, Gaming and the Arts.
Source: CBS