Abstract
This chapter explores the various meanings given to “affirmative consent” to sexual contact. It explains why affirmative-consent standards might trouble retributivists and how the benefits of such standards have been exaggerated.
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Notes
- 1.
Many of the arguments and some of the expressions of those arguments in this chapter first appeared in Cole (2016).
- 2.
Antioch College’s policy in the 1990s, however, stated:
Verbal consent should be obtained with each new level of physical and/or sexual contact/conduct in any given interaction, regardless of who initiates it. Asking “Do you want to have sex with me?” is not enough. The request for consent must be specific to each act.
The standard was parodied on the TV show Saturday Night Live. Verbal authorization was not required when a sex act was “mutually and simultaneously initiated” (Johnson and Taylor 2017, pp. 219–920).
- 3.
An example is the canard that affirmative-consent standards are needed to displace a presumption of female sexual availability and protect women from being fondled by strangers on a bus before they have a chance to object, appropriately rejected by Ferzan (2016, p. 429).
- 4.
Proxy crimes are less troubling when they address a closely regulated industry whose participants can easily be educated about the rules. Obviously, no-means-no does not satisfy that criterion.
- 5.
For a white paper aimed at higher education that explicitly advocates cashing out affirmative-consent standards in reasonableness terms, see the NCHERM excerpt quoted in note 6.
- 6.
Consider Shaw (2016, pp. 1412) on campus affirmative-consent policies, discussing a 2015 survey:
Eighty-three percent of students, both men and women, indicated they were familiar with the “yes means yes” standard. While they were well aware of the standard, they differed greatly in its application. When asked if undressing, getting a condom, and/or nodding in agreement established consent for further sexual activity, over forty percent said “yes” and over forty percent said “no.” …
A higher education consulting group “widely credited with helping to popularize and institutionalize consent-based policies in higher education” has recently expressed concern about their application by campus “sex police” (The NCHERM Group 2017, pp. 3, 5–6):
“Affirmative consent” policies … need to be used correctly or the entire concept will get a bad name. … Some of you are off track because you are applying a utopian lens to consent. …
… [Y]ou should look at consent more as transactional and contextual, meaning that we view the entire sexual interaction and the context of the larger relationship. We contrast that to an approach that is more particularized and occurrence-based, where finders-of-fact tend to hyper-focus on each touch within a sexual interaction and ignore the larger context of the relationship. … [Y]ou will be best served by evaluating consent based on the perspective of a reasonable person who is viewing the totality of the circumstances. That means we look at the whole relationship or interaction (the transaction), not just one time that someone might have touched someone else problematically (the occurrence).
Adding to the risk of confusion: some campuses may have classified instances in which a person assented to sex but regretted it as not involving consent. For a case reporting on plaintiff’s allegations that a Title IX coordinator had publicly taken the position that “regret equals rape,” see Doe v. Washingtonand Lee University (p. 3). If legality depends on a prediction of how a partner will feel in the future, the risk of mistake increases. See also Flack et al. (2007, pp. 148–149) (women reporting “unwanted” vaginal intercourse listed “thought I wanted it at the time” among the top three reasons 37.5% of the time).
- 7.
On procedures on campus that could not be used in the criminal law, see Johnson and Taylor (2017, ch. 4).
- 8.
A higher education consulting group has identified this tendency toward temporal limitation among some colleges in applying their affirmative-consent standards. See note 6.
- 9.
American Law Institute (2015, p. 164) defends exempting some persons from the affirmative-consent standard because “the Code makes clear that the consent must accompany the specific disputed act.”
- 10.
See Simons (2006, p. 588) for a similar suggestion.
- 11.
The ALI reporters have previously employed the strategy of “chang[ing] the narrative.” After criticism of its self-consciously styled affirmative-consent proposals, the reporters recast it as a “contextual-consent” proposal without significantly altering its substance (Cole 2016, p. 512).
- 12.
One commentator praised the vagueness of a proposed California affirmative-consent standard because of its ability to deter, hoping the law would “create a haze of fear and confusion over what counts as consent” (Klein 2014).
- 13.
In the college disciplinary system, problems have been well documented. An instructive survey of troubling cases appears in Johnson and Taylor (2017).
- 14.
Tuerkheimer discusses a case in which the defendant claimed to believe the victim was feigning sleep but did not point to any conduct or communication by the victim that led to this belief. Conviction would be likely even under a recklessness standard in the absence of some compelling account of why the defendant did not perceive a substantial risk that the victim was actually asleep.
- 15.
American Law Institute (2015, section 213.9(2)) exempts “spouses and intimate partners” from liability when specific facts show the actor “honestly and reasonably believed” the sleeping partner “would welcome the act.”
- 16.
Even Tuerkheimer acknowledges that the intoxication cases “more often seem to feature expressions of non-consent” (Tuerkheimer 2016, p. 457), which of course could be handled by a simple no-means-no rule.
- 17.
Indeed, the drafters of the MPC proposal thought this problem was beyond solution. For discussion and critique, see Cole (2017).
- 18.
Flack et al. (2007, pp. 148–149) found that women who experienced unwanted vaginal intercourse listed “happened before I could stop it” 50% of the time among the top three reasons that it occurred.
- 19.
Tuerkheimer says that “many of [the fear] cases also feature a communicated lack of consent. On these facts, the conduct alleged would qualify as nonconsensual under any definition, affirmative or otherwise” (Tuerkheimer 2016, p. 458).
- 20.
In one of the cases addressed, the victim was “shaking and crying throughout” the sexual encounter, strong evidence that the defendant was consciously aware of a substantial risk that the victim’s cooperation was induced by fear. Other cases involve a “surprise attack,” another scenario in which only a sociopath would fail to recognize the risk that fear had induced cooperation. For example, in State v. Benitez, a 17-year-old was driven home by the 40-something husband of her church pastor following a church event. After dropping off everyone else, the defendant drove away from the victim’s house and stopped on a dead-end street. He “began to rub the inside of [victim’s] thighs, kissed and bit her neck, put his hands under her shirt and rubbed her breasts.” The victim did nothing to encourage the activity. And in yet another, the victim did not say “no,” but the defendant had held his hand over her mouth—pretty good evidence that he was aware of a risk that she was unwilling (State ex rel. K.B.).
- 21.
310 N.C. 399 (1984).
- 22.
Presumably, if fear induces a woman to say “yes,” and her partner is aware that her affirmative consent is induced by fear, the standard will be elaborated such as to permit conviction.
- 23.
One model code, promulgated by a firm that advises academic institutions, includes the following illustration as vitiating consent (The NCHERM Group 2010, p. 9):
Amanda and Bill meet at a party. They spend the evening dancing and getting to know each other. Bill convinces Amanda to come up to his room. From 11:00pm until 3:00am, Bill uses every line he can think of to convince Amanda to have sex with him, but she adamantly refuses. He keeps at her, and begins to question her religious convictions, and accuses her of being “a prude.” Finally, it seems to Bill that her resolve is weakening, and he convinces her to give him a “hand job” (hand to genital contact). Amanda would never had done it but for Bill’s incessant advances.
Johnson and Taylor (2017, pp. 99, 101) identify one college discipline case in which responsibility was based on the conclusion that the accused had “directed unreasonable pressure for sexual activity toward [the female student] over a period of weeks” and another in which consent was vitiated because a woman was “pressured … seemingly by the general college environment,” not by the accused.
- 24.
- 25.
Presumably, the generally powerful might be rape victims even under an equality approach. The generally powerful, for example, might occasionally be in a vulnerable position, like unconsciousness. But in other situations, the powerful party’s simple willingness to engage in sex apparently will defeat claims of vulnerability, and the less powerful person will not have exploited inequality even if the more powerful person was not enthusiastic.
- 26.
For an argument that conduct should be criminalized on dignity grounds only when violations constitute “severe humiliations,” see Hornle (2012).
- 27.
Some criticize the idea that different rules should apply to first-time sex partners, apparently believing that such rules imply that consent to sex is never ending. Early ALI drafts exempted some long-term relationships from the affirmative-consent requirement (Cole 2016, p. 513). A general recklessness or negligence standard would take into account whether partners had a sexual history against which to evaluate a sexual encounter. Certainly, no one would overlook that a woman had on prior occasions emphatically rejected intercourse with a partner in evaluating the meaning of signals in later encounters.
- 28.
American Law Institute (2015, §213.9(1)) would have created a defense for those who prove by a preponderance of the evidence that they reasonably believed their partner had given “explicit verbal consent” to applying physical force and ignoring indicia of unwillingness.
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Cole, K. (2019). Affirmative Consent. In: Alexander, L., Kessler Ferzan, K. (eds) The Palgrave Handbook of Applied Ethics and the Criminal Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-22811-8_3
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