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Was the famous #AlfredEisenstaedt photo of the sailor kissing a woman who appeared to be a nurse, in #TimesSquare, on #VJDay, a #sexualassault? Contrary to accepted wisdom of the #MeToo crowd (whose goals I support, but whose excesses I deplore), probably not. Here's why: /1
First, it’s not clear who is in the photo. Is it #GretaZimmer or #EdithShain? #GeorgeMendonsa or #CarlMuscarello? Or one of the many other men who claimed to be kisser or women who claimed to be the kissee? It matters, because, absent a victim, there is no sexual assault. /2
Absent testimony, the law does not assume a man touching a woman on a photo is touching her sexually without her consent simply based on body language. It is one thing to #BelieveWomen women's stories, but quite another to PRESUME no consent. Luckily, that is not the law. /3
Further, the only woman claiming to be the kissee whose words have been interpreted as suggesting no consent (so far as I know) was Zimmer. E.g.,… Thus, if the woman in the photo is not Zimmer, there is no basis to conclude that a sexual assault. /4
But second, if Zimmer was the kissee, nowhere on record does she say she did not agree to the kiss. Her statements are ambiguous as to consent. (E.g.,…) While some have argued that the kiss's sudden nature means no consent,… /5
...that is not necessarily true. Consent need not be given in advance, nor must it be affirmative. (While affirmative, advance consent is an ideal that we all should strive for, and the standard on many college campuses, it is not the standard for criminal sexual assault.) /6
Third, even assuming (1) it WAS Zimmer and (2) she did NOT consent, that’s still not necessarily sexual assault. As the #MeToo movement often forgets, sexual assault has defenses. And if it was Mendonsa, he likely had a good defense (even ignoring any statute of limitations). /7
The first probably defense is reasonable belief of consent (which might be more than he had to prove, as subjective belief may have been enough). According to Mendoza, he believed that his actions were welcome in light of the party in Times Square.… /8
The party in Times Square on VJ Day is not just his subjective opinon; many others reported on it (and there were reportedly other instances of solidiers/ sailors spontanously kissing women). Even Zimmer describes the scene at Times Square as a party, "better than" New Year's. /9
Of course, nobody would suggest that it is appropriate to grab, hold and spontanously kiss a perfect stranger on New Year's Eve in Times Square today. But a defense of reasonable belief of consent would look to what was reasonable then, not what we view as reasonable today. /10
In light of all the photos of sailors kissing nurses in Times Square that day (some of which Mendonsa says that he saw), and in light of Zimmer not slapping his face, Mendonsa may have reasonably believed, in light of the circustances, that his kiss was welcome. /11
Now, I like to think that, even in 1945 the ecstacy of a World War ending, a man would have assumed that strong kisses from strangers are generally not welcome. And maybe a jury today would do so, too. Yet, even if we hold Mendonsa to a consent standard from the #MeToo era... /12
...he has another, probably better, defense. Assuming today's New York sexual assault statute is substantially similar to its 1945 rape statute (a leap, although presumably the statute was more lenient then), sexual assault requires an intent "of gratifying sexual desire." /13
Touching someone on the lips with no intent to obtain sexual gratification might be an assault (battery), but it is not SEXUAL assault.… And both Zimmer's and Mendonsa's words strongly suggest that this kiss was not about sex, but a thank you. /14
Zimmer states that the kiss was not a "romantic" thing, just "celebrating" and "thank God the war is over." Also, she opines that "it wasn't...much of a kiss, it was...a jubilant act that he didn't have to go back." Moreover, she describes the kisser's motives as non-sexual: /15
Zimmer states that that the reason the kisser "grabbed someone dressed like a nurse was that he...felt...grateful to nurses who took care of the wounded." Thus, the kiss was, according to the (supposedly non-consenting) kissee's own interpretation, not about gratification... /16
...but a "thank you" smooch to someone the sailor believed deserved thanks, a nurse! This makes perfect sense if the kisser is Mendonsa, who was ON A DATE with the woman would become his WIFE. Presumably if the kiss was about sexual desire, he would have kissed his date! /17
But instead, since the kiss was a grateful thank you, he kissed a nurse rather than his date. Hence, although we can all agree that the famous kiss on VJ Day was inappropriate, and thereful might have been battery, upon a careful analysis, it probably was NOT sexual assault. /18
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