A Sexual Relationship, Did We Have One? a Review of the Definition of "sexual Relationship" Within the Context of Alaska's Domestic Violence Laws

• Publication year: 2007

§ 24 Alaska L. Rev. 237. A SEXUAL RELATIONSHIP, DID WE HAVE ONE? A REVIEW OF THE DEFINITION OF "SEXUAL RELATIONSHIP" WITHIN THE CONTEXT OF ALASKA'S DOMESTIC VIOLENCE LAWS

Alaska Law Review
Volume 24, No. 2, November 2007
Cited: 24 Alaska L. Rev. 237

A SEXUAL RELATIONSHIP, DID WE HAVE ONE? A REVIEW OF THE DEFINITION OF "SEXUAL RELATIONSHIP" WITHIN THE CONTEXT OF ALASKA'S DOMESTIC VIOLENCE LAWS

BETH GOLDSTEIN LEWIS TRIMMER ^[*]

I. INTRODUCTION

II. SEXUAL RELATIONSHIP: LACKING A CLEAR LEGAL OR SOCIETAL DEFINITION

A. How Is "Sexual Relationship" Defined?

B. The Clinton Case

C. Most State Legislatures Have Failed to Define "Sexual Relationship"

III. HOUSEHOLD MEMBER AS DEFINED BY "ENGAGED IN OR HAVING ENGAGED IN A 'SEXUAL RELATIONSHIP'"

A. The Statute Fails to Define "Sexual Relationship"

B. Legislative History: Some Indication of the Scope of "Sexual Relationship"?

IV. SO WHAT?: INTERPRETIVE, CIVIL, AND CRIMINAL IMPLICATIONS OF ALASKA'S FAILURE TO DEFINE "SEXUAL RELATIONSHIP"

A. Problems in Interpretation Arising from the Statute

B. Criminal Implications: Alaska Rule of Evidence 404(b)(4)

C. Civil Implications: Protective Orders

V. TOWARD A CLEARER DEFINITION OF "SEXUAL RELATIONSHIP": SUCCESSFUL LEGISLATIVE AND JUDICIAL ATTEMPTS TO NARROW THE SCOPE OF A "SEXUAL RELATIONSHIP"

A. Legislative Attempts

B. Court Attempts

VI. CONCLUSION

FOOTNOTES

Under Alaska domestic violence laws, two individuals who have engaged in a "sexual relationship" are "household members." The Alaska Legislature, however, has left the term "sexual relationship" undefined. This Comment sets out to define the term. Finding no answer in the legislative history and common meaning of a sexual relationship, the Comment concludes that the Alaska Legislature needs to take steps to more clearly define what constitutes a "sexual relationship" for the purposes of the domestic violence laws. Action on the part of the legislature is even more important, this Comment suggests, because a number of criminal, civil, and interpretive consequences may arise from the failure to define "sexual relationship."

[*pg 238]

I. INTRODUCTION

"Domestic violence," as defined in section 18.66.990 of the Alaska Statutes, ^[1] has a potentially far-reaching meaning. According to subsection three of the statute, the terms "domestic violence" and "crime involving domestic violence" are crimes committed by one "householder member" against another. ^[2] Such crimes range in severity from homicide, murder, and sexual offenses to criminal trespass and harassment. ^[3] The far-reaching implications of Alaska's domestic violence laws rest not only on the broad list of crimes encompassed by the statute, but also by the Alaska Legislature's expansive definition of "household member." ^[4] Under section 18.66.990(5) of the Alaska Statutes, the Alaska Legislature has defined "household member" to include "adults or minors who are engaged in or who have engaged in a sexual relationship." ^[5]

[*pg 239]

Although the term "sexual relationship" is used to define the scope of "household member," for purposes of domestic violence laws in Alaska, "sexual relationship" is neither defined statutorily nor through Alaska case law. ^[6] Other states' domestic violence statutes also define household members as persons who either currently, or at sometime in the past, have engaged in a sexual relationship. ^[7] Although none of these states' statutes or case law have fully defined the term "sexual relationship," they provide some insight into how section 18.66.990 of the Alaska Statutes may be revamped to better reflect the legislative intent behind Alaska's domestic violence legislation.

Even with this guidance from other states, the bottom line is that as section 18.66.990 of the Alaska Statutes currently exists, there is little guidance for the courts and even less for the individuals impacted by its terminology. This is problematic because being deemed a "household member" has significant criminal and civil implications. The focus of this Comment is to analyze the definition and implications of the term "sexual relationship" within the context of Alaska's domestic violence laws.

As background, Part II explores the etymological, social, and legal meaning of the term sexual relationship. Specifically, it addresses two key interpretive questions associated with the term: what activity is required to constitute a sexual relationship, and are there any temporal requirements to establish a sexual relationship? Although some attempts have been made to define sexual relationship, Part II concludes that no generally accepted definition exists and that neither interpretive question has a generally accepted answer.

Part III examines the term "sexual relationship" as it is used in the Alaska domestic violence laws and as the legislature intended to use it. Two diverging conclusions arise from this examination. First, although "sexual relationship" is textually undefined, the legislative history suggests that only ongoing sexual relationships or past sexual relationships that developed over a significant period of time qualify under the statute. Second, while the legislative history may suggest that only ongoing relationships qualify, this is by no means conclusive; the legislative history is ambiguous as to whether a "sexual relationship" requires a minimum length of time. In light of this ambiguity, Part IV identifies and explores the three practical implications of the Alaska Legislature's failure to define "sexual relationship": interpretive problems that courts may have, the

[*pg 240] admission of evidence under Alaska Rule of Evidence 404, ^[8] and the increased use of protective orders. Part V then concludes with suggestions for change.

II. SEXUAL RELATIONSHIP: LACKING A CLEAR LEGAL OR SOCIETAL DEFINITION

The term sexual relationship may seem simple enough on its face. But a closer examination begs at least two key interpretive questions. First, what sort of sexual activity is required to establish a sexual relationship? Is sexual intercourse required, or do other forms of sexual activity qualify? Second, for how long or how many times must the requisite sexual activity have occurred to constitute a sexual relationship? Does a casual sexual encounter, such as a one-night stand qualify, or need there be consistent and recurring sexual activity over a period of time? If some time element is required, where is the line drawn?

As Part II demonstrates, the term sexual relationship has no generally accepted legal or social definition. More specifically, the two key interpretive questions above have no clear answer. These interpretive problems make Alaska's failure to statutorily define "sexual relationship," discussed below, ^[9] even more problematic: with no statutory guidance and no interpretive reference in law or society, Alaska courts are left to their own devices to interpret the term "sexual relationship."

A. How Is "Sexual Relationship" Defined?

Black's Law Dictionary defines a number of different types of relationships -- everything from the attorney-client relationship, to the professional relationship, to the parent-child relationship. ^[10] However, nowhere in Black's Law Dictionary is sexual relationship defined. ^[11] The same is true for the American Heritage Dictionary of English Language ("American Heritage Dictionary"). ^[12]

Both Black's Law Dictionary and the American Heritage Dictionary do define a similar term: "sexual relations." ^[13] The American Heritage Dictionary defines "sexual relations" as

[*pg 241] "sexual intercourse" and "sexual activity between individuals." ^[14] Black's Law Dictionary's definition is similar: "sexual relations" include both "sexual intercourse" and "[p]hysical sexual activity that does not necessarily culminate in intercourse." ^[15] In a social and legal sense, then, "sexual relations" do not need to rise to the level of sexual intercourse, and can include all forms of sexual activity.

The etymology of the term "relationship" suggests, however, that two individuals who have shared sexual relations do not necessarily have a sexual relationship. The term "relationship" derives from the word "relation," which, as discussed above, can include sexual intercourse or other physical sexual activity, ^[16] and the native English suffix -ship, meaning something that shows or possesses a quality. ^[17] It follows that a sexual relationship shows or possesses the quality of sexual relations. More precisely, a sexual relationship shows or possesses the quality of sexual intercourse or some other form of sexual activity. ^[18]

While this definition of sexual relationship may sound nice, it offers very little interpretive guidance. For one, it is unclear what type of sexual activity is required to establish a sexual relationship. If, as it was assumed above, the term "sexual relations" can be used to interpret sexual relationship, then certain other forms of sexual activity may constitute a sexual relationship. Sexual activity takes multiple forms, however, and the definition provides no guidance as to where to draw the line. ^[19] It is also possible that not all "sexual relations" constitute a sexual relationship. Must the requisite sexual activity occur only once, i.e., a one-night stand, for it to show or possess the quality of the requisite sexual...