At a chain restaurant in Vicksburg, Mississippi, a manager pulls a waitress into a walk-in freezer, where he fondles and tries to kiss her. In Jackson, the boss at a grocery story sticks his hands down female workers’ pants. And at a chicken processing plant in rural Morton, at least a half-dozen women say their supervisor routinely came up behind them to grope them.
In California, fondling carries a punishment ranging from a fine to four years in prison. But in Mississippi, it’s not spelled out as a crime under state law.
As a national discussion has refined how we think about sexual assault, Mississippi offers a stark example of how laws related to sexual violence have not kept pace with modern ideas about the crime. It is one of two states, along with Idaho, that doesn’t have criminal laws that clearly forbid unwanted sexual touching such as groping and fondling.
At last count, nearly 30 percent of U.S. women experience this kind of unwanted sexual contact in their lifetime, according to the Centers for Disease Control and Prevention. The U.S. Justice Department describes it as sexual assault, and in most states, this behavior would be a misdemeanor or felony crime.
The other 48 states have created sexual assault laws that address the spectrum of sexual violence for many reasons. They more accurately describe the crime and recognize what the victim has experienced. They create a clearer path for reporting and prosecuting the crime. They may be tied to punishments that more closely align to what happened. And they establish a standard for acceptable behavior.
These laws send “a powerful message that a butt grab and a boob grab are not a funny thing,” said Erin Murphy, a law professor at New York University. “Society can condemn this behavior through criminal law and say, ‘You pay a penalty for this.’ It may be a small penalty, but you pay a penalty.”
The two states’ silence on this level of sexual assault points to a larger issue: States frequently are behind in keeping laws in line with changing ideas and attitudes toward sexual violence. For the first time in 50 years, the sexual assault section of the Model Penal Code – the go-to document for lawmakers who are rewriting their criminal laws – is being revised. Developed by The American Law Institute, the code is also taught in almost every first-year criminal law class in the United States.
The debate over changing the code largely centers on how courts should think about victim consent, said Michelle Anderson, dean of The City University of New York School of Law. While some portions of the Model Penal Code were forward thinking for the time, the code still allows men to rape their wives. In practice, though, the so-called “marital exemption” has been outlawed in all 50 states since the 1990s.
Today’s sexual assault laws emerge from a fraught legacy. The country’s earliest criminal statutes had vestiges of the English legal tradition in which rape was grounded in ideas of property law, when violating a woman was the equivalent of stealing her chastity from her father or husband. While American sexual assault laws always have viewed rape as a crime against a person, victims needed to prove their chastity for their cases to be taken seriously up until about the middle of the 20th century.
Indeed, rape in Mississippi still is defined as the intent to “forcibly ravish any female of previous chaste character.” Although state courts now presume that all rape victims are chaste, most prosecutors rely on a newer part of the state’s penal code that tackles sexual battery and statutory rape.
While there are criminal laws related to the sexual abuse and touching of children, for most adults, Mississippi sex crimes laws don’t say much beyond crimes involving rape. Short of that standard, law enforcement officers may charge the perpetrator with attempted sexual battery, though the victim would have to show that the attacker was planning to rape her.
“There’s a gap here where it doesn’t matter if someone forcibly shoves their hand between my legs. They say it’s like disturbing the peace, but it’s disturbing more than the peace. It’s violating.”
— Toni Marek, 35-year-old Texas community college student
For adults, all other types of sex crimes have to be pursued with more creativity. The Mississippi attorney general’s office has instructed police and prosecutors to rely on criminal laws such as simple assault and disturbing the peace, misdemeanor charges typically associated with people who are drunk in public or get in a fistfight.
This can minimize the crime for victims and fail to hold perpetrators accountable.
“It is disheartening sometimes,” said Lt. Mark Little of the Southaven Police Department, at the state’s northern border. “We know it’s more serious than someone striking someone when they grab someone on the rear end or the breast, but with the ways our laws are stated, especially on the adult side, it goes in as an assault through misdemeanor court.”
And because 16 is the age of consent in many cases in Mississippi, law enforcement officials have had to pursue fondling cases of 16- or 17-year-olds as a misdemeanor. In other states, where the age of consent is 18, those cases would be considered more serious felonies.
Nevertheless, prosecutors across Mississippi said fondling and groping cases are not a large part of their docket. Ron Peresich, a Biloxi city prosecutor, said he takes a few cases like this a month. Others, like his colleagues in Tupelo, Oxford and Gulfport, say groping cases rarely are referred to them by law enforcement.
This is in part because victims – like victims of all types of sexual abuse – are hesitant to come forward, law enforcement officials say.
“Because of the nature of the complaint, these are underreported crimes,” said Billy Sollie, sheriff of Lauderdale County, which borders Alabama. “But law enforcement can’t stop it if we don’t know about it. And if there is one victim, there may be many others.”
Toni Marek was a 35-year-old Texas community college student in April 2013 when she traveled to Mississippi for an honor society meeting.
A student leader of the society, Marek said the organization’s executive director grabbed her buttock and squeezed while they posed for a photo. At another meeting in Jackson a few months later, Marek said he touched her inner thigh and crotch while they were seated next to each other at a dinner.
Marek said she didn’t report the incidents to police – “You feel like you’re going to be laughed at,” she said – but she had no idea the state didn’t have laws to specifically address them.
“There’s a gap here where it doesn’t matter if someone forcibly shoves their hand between my legs. They say it’s like disturbing the peace, but it’s disturbing more than the peace,” she said. “It’s violating.”
As they have with same-sex marriage, American laws around sexual abuse have shifted over time, following public opinion and social trends.
Until the latter part of the 20th century, to gain a rape conviction, victims often needed independent corroboration and had to prove their chaste character. Estelle Freedman, a women’s history professor at Stanford University and author of the book “Redefining Rape,” said the laws have tended to reflect problematic power imbalances based on race and gender. White and well-to-do women tended to more easily meet the definition of chastity than women of other backgrounds, she said.
It would take decades for requirements on third-party corroboration and chaste character to fall away, but their legacies persist today, including the tendency to disbelieve sexual assault victims and expect eyewitness testimony.
“Those things go very long and deep in our history,” Freedman said.
In most states, the laws have expanded beyond rape to protect against different kinds of unwanted sexual contact. Some of the earliest American statutes related to unwanted touching were drafted in the 1920s, though they weren’t applied widely until the last few decades, Freedman said.
Forty-three states and the District of Columbia have drafted laws specifically prohibiting unwanted sexual contact, according to Reveal research and an analysis by NYU’s Erin Murphy and Stephen Schulhofer as part of the Model Penal Code revisions. Five states specifically address the issue under more general laws that prohibit battery, public indecency or “lewd and lascivious” behavior.
“If you can stop the act early on, maybe it may save a victim down the road or deter the suspect from escalating things.”
— Lt. Chris De Back, Biloxi Police Department
There are people trying to bring Mississippi’s laws in line with the rest of the country’s. In 2013, Democratic state Rep. Kimberly Campbell introduced a bill that would have created a misdemeanor crime called “indecent assault.”
The bill came out of questions the attorney general’s office had received from law enforcement about how to deal with adult fondling cases. Campbell said the state effectively was telling perpetrators that “this is not a big deal.”
Lt. Chris De Back of the Biloxi Police Department said a law forbidding fondling could stop more serious crimes, too.
“It could be viewed as an escalating crime, where someone starts by grabbing and then escalates to fondling, and they could escalate to rape,” he said. “If you can stop the act early on, maybe it may save a victim down the road or deter the suspect from escalating things.”
The bill died. Opponents argued that it did not include language about intent and, in a state currently grappling with prison overcrowding, lawmakers were wary of passing a law that they said could criminalize accidental touching or bumping. Even proponents of these types of laws acknowledge that if applied inappropriately, they could be used to disproportionately target minorities. They also may stigmatize people who are not lifelong deviants, because in some states, convictions for indecent assault might land a perpetrator on a sex offender registry.
Although there still is no clear way to report, charge or prosecute cases involving adult groping and fondling in Mississippi, some criminal prosecutors said they have all of the legal tools they need to pursue the cases that come to them.
“With the laws we have in place, we’ve got, for the most part, the whole gamut of what we would see on a daily basis is covered,” said John Champion, district attorney of Mississippi’s 17th Circuit Court District, which covers counties near the Tennessee border. “There are a lot of options available to us.”
Others, such as Jamie McBride, the sexual assault prosecutor for Hinds County, said that while a new sex crimes law might complicate matters, it also would help fill in a legal gap.
“It is different in my mind if you are on the street and someone pushes you versus if someone gropes you,” he said. “Though it would be difficult to prove, it would be nice to have a tool in certain circumstances.”
In contrast, Pennsylvania has had an indecent assault law on the books since the 1970s. In Allegheny County, the district attorney’s office handles several dozen of these cases a year, said Deputy District Attorney Janet Necessary.
Last year, Necessary’s office successfully prosecuted an indecent assault case involving multiple charges against a 19-year-old man who pulled down the running shorts of a woman jogging in a park. He also had tried to lift the skirt of another woman before running off earlier the same day.
Necessary said her office also has used the indecent assault law in workplaces to prosecute cases in which supervisors have sexually harassed workers in a physical way. For these types of cases, Necessary said indecent assault more accurately described the crime.
“A victim knows when someone is touching them in an intimate part, and that’s for sexual gratification,” she said. “The law fills a need.”
Sometimes, the limited statutes available for prosecuting sex crimes in Mississippi means the punishment for the crime doesn’t always match the misdemeanor laws that police and prosecutors have at their disposal.
About eight years ago, Steven Jubera, a prosecutor in northern Mississippi, handled a case involving a jail inmate who said he woke up to find his cellmate fondling his penis. Because there was no penetration involved, the only option was to pursue the case as a misdemeanor simple assault, even though Jubera believed the crime was more serious.
Jubera said that as the stigma of reporting male-on-male fondling diminishes, he predicts that Mississippi prosecutors will see more of these cases for which the current laws don’t meet their prosecutorial needs.
In northeast Mississippi, interim District Attorney John Weddle for the First Circuit Court District said he also would favor expanding the sex crime laws because he has taken calls from police for cases in which 16- and 17-year-olds said they’d been fondled by an adult. But because 16 is the age of sexual consent in many cases in Mississippi and there’s no law for sex crimes outside of rape or attempted rape, Weddle had to tell the police to pursue the case as a misdemeanor simple assault.
“I would like to have an option to treat that type of an assault as a sex crime,” he said.
This story was edited by Andrew Donohue copy edited by Nikki Frick.
Bernice Yeung can be reached at firstname.lastname@example.org. Follow her on Twitter: @bmyeung.