Affirmative Consent As Legal Standard?

From time to time people ask about how “yes means yes” relates to the law of rape. I’ll give the cynical answer first: what law of rape? One can open the statute books and find a definition of “rape” or “sexual assault”, that varies depending on the jurisdiction. If one reads that, one will have learned nothing about the law of rape. (Some readers may understand that I’m making a statement here about what is called “philosophy of law,” and a very controversial one. More on philosophy of law below.) In the United States, we basically only apply criminal penalties to stranger rape. Acquaintance rape mostly is unpunished, and so, to say it is even illegal is sort of misleading. In that sense, my initial reaction is to say that we should worry about how to reform the legal standard for rape when we’re serious about treating it like a crime.

But leaving it at that is too bleak and hopeless, so instead I want to set down some thoughts on how the feminist thinking about rape and affirmative consent translates to law.

An Affirmative Consent Standard?

When feminists talk in moral terms about rape, many of us talk about “enthusiastic participation” or “enthusiastic consent.” I think that’s the right standard for determining when one’s sex partner consents. However, as a rule of law, it is difficult to work with because “enthusiastic” is slippery. I’m not saying it’s impossible, by the way, but it’s not the clearest wording.

“Affirmative consent”, however, is not at all ambiguous. What we are doing is not working. I’m not a fan of Dr. Phil, but he occasionally turns a clever folksy phrase, so I’ll quote him: “If what you’re doing isn’t working for you, try doing something different.” Affirmative consent is something different.

I’m certainly not the first person to think that affirmative consent ought to work as a standard. As a conduct standard, though not a criminal standard, Antioch College imposed a requirement to secure affirmative consent. Rachel Kramer Bussel wrote about it in her Yes Means Yes essay, and I expanded on what she wrote here. Recently, I was sorting through this thinking in emails to a friend, and after she encouraged me to write it up as a post, I went looking for writing specific to affirmative consent as a legal standard. There are probably other pieces, but I came across a law student note (a note is something like a thesis, the major piece of writing that law students do, and many but not all of them are published) from a guy named Nicholas Little that paralleled much of what I was thinking. Perhaps I only like it because he and I said many of the same things, and perhaps that is evidence, if more were needed, of my own intellectual shortcomings. But I like it and I’m going to quote it nonetheless.

Little’s note is titled From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative Consent Standard in Rape Law, and Vanderbilt Law School, whose Law Review published it, kindly makes it available to folks who don’t have flat-rate Lexis and Westlaw subscriptions on their website as a .pdf.

Little points out that even “no means no” is still contested terrain:

Central to the consideration of consent has been the much affirmed concept that “no means no.” In short, the standard means that, if an individual verbally rejects sexual advances, that person must be seen as withdrawing consent to sexual contact. “No means no” has been a rallying cry for the on-campus feminist movement. Despite its utter simplicity and apparent reasonableness, supporters of “no means no” are still having to make their case on a daily basis, and apparently many still believe that a woman’s outright verbal rejection of sexual advances does not, in and of itself, create a case of rape against a man who engages in sexual intercourse with the woman. For example, columnist Gregg Easterbrook, examining the Kobe Bryant case, opines that “the reality of human interaction is that ‘no’ does not always mean no. Maybe half the sex in world history has followed an initial ‘no.’ ” Such opinions base themselves not infrequently on the findings of surveys such as that done in 1988 at Texas A&M University. This survey found that 39.3 percent of the female undergraduates surveyed sometimes said no, although they “had every intention to and were willing to engage in sexual intercourse.” Although this and other studies showed that “no” does mean “no” for most women, some interpreting these results cite them as evidence that the word “no” confuses some men.

The “no means no” standard, despite its apparent simplicity, is under attack by those who claim that it is simply not true—that in many dating cases “no” may not actually mean no. The intent of this Note is not to present such attacks as persuasive; they are not and were refuted in the 1998 Texas A&M University study, Muelenhard and Hollabough’s original work. They are still made, however, and these arguments show how the “no means no” movement has failed to establish itself as the common sense position it portrays itself as. That debate still exists about whether a woman has been raped, when she has explicitly stated that she does not wish to engage in sexual intercourse but was ignored by her partner, who proceeded to have sex with her, is a sign of the failure of “no means no” to come into the mainstream. More importantly, court decisions acquitting men of rape where there is no doubt that the woman has indeed said no to sexual intercourse indicate that “no means no” is far from being the accepted legal standard.

[At p. 1323, internal citations omitted.]

Rape is a crime that almost always happens without witnesses (the major exception being gang-rapes, and even then all the witnesses may be either participants or passive supporters of the rape), and where a key element is not usually subject to measurement by physical evidence. Yet simply not prosecuting it, which is what we really do now, is a bad solution because the crime becomes epidemic. One in eight women who attend college leaves saying that she was sexually assaulted. Not by some Katie Roiphe definition, or Neagu’s definition; by the Ohio statute. See Robin Warshaw’s book, I Never Called It Rape, based on research by Mary Koss. So that’s a huge social problem, and we have to do something to deter the conduct.

Substantive and Procedural Rules

There are two fundamental problems. The first is the substantive law, that is, what conduct the law requires and/or bars. The second is procedural: the rules of the mechanism by which it is adjudicated. It seems simple enough to me, maybe because I’m a litigator. But as recently as yesterday, I’ve run across people who can’t (or choose not to) keep it clear in their head. As lawyers are wont to do, I’ll illustrate the difference with a silly example that has neither the complexity nor the emotional loading of the topic I’m writing about. Please forgive me for this, because it’s longish and not that interesting, but I feel like it’s necessary groundwork.

Suppose the way the game of hopscotch was played were a matter or criminal law. The legislature might pass a statute that said, “all games of hopscotch will commence with the first player making the first jump on the player’s left foot.” That’s the substantive law. The conduct required is a left-footed first jump. If the statute said, “no player shall knowingly commence a game of hopscotch with a jump other than a left-footed jump,” that’s a different rule, because it imports a state of mind, “knowingly.” How that is proved is procedural. A rule that the prosecution must prove the occurrence of the non-left-footed jump beyond a reasonable doubt is one standard. If there were a certification requirement (to get really silly) that all players write up an affidavit that the game began with a left-footed jump and then keep that on file in case the prosecutor came to inspect it, and the absence of the required left-footed jump at the beginning were presumed from the absence of the record, and the players could then rebut the presumption, that would be a different procedural rule. It would not change the substantive conduct – the required left-foot start – but it would change the means of determining whether that happened.

All that is to say this: when I (and Little) talk about a legal standard of affirmative consent, we’re talking about a substantive requirement, and duty that goes not to how somebody proves what happened, but that tells people how they are required to act in the first instance. One could interrogate and muddy it, but I think that’s angels on the head of a pin. There is a difference between those two things.

Lawyers love neat rules that work not only for the common case, but for the less common forseeable ones. We know from the research that nine out of ten rapes are by guys who do it again and again. Usually, the rules of evidence allow prior bad acts for the purpose of showing plan, motive, or absence of mistake, (for the legal eagles, Fed. R. Evid. 404(b), the so-called “MIMIC exceptions,” but I don’t have time to review the case law concerning application of prior bad acts in rape cases; it’s almost certainly a mixed bag with some egregiously result-oriented decisions), so we generally recognize that if someone claims to have made the same mistake again and again, it’s not likely to be true. However, affirmative consent works at the margins, too. I want to examine that first.

Whether civil or criminal, in law we try to create rules that shift the risk of miscommunication all the time. If we’re not talking about serial rapists but just people who may have a misunderstanding, how can we best allocate the risk? First, by mandating clear communication! Unspoken agreements are a breeding ground for misunderstanding. To skip to civil law for an analogy, a contract is not a contract until there is a meeting of the minds on material terms.

Little says, “the introduction of an affirmative consent standard would not only incentivize rational behavior on the part of both women and men in dating situations but that such a shift in the law would potentially shift public perceptions of women and their role in sexual relationships.” (At p.1324.) We’re unused to people actually bargaining around sex like rational people with interests, because there’s a social script. People have, basically, emotional objections to dealing with sex rationally. (BDSMers are generally immune to this, except the assholes who have gendered ideas about a pre-ordained dom-sub order to the universe.) But it will not ruin sex!

(Nothing will ruin sex. Affirmative consent isn’t even a radical idea. Outlawing sex and making the initiator a criminal in all events is a radical idea. I quoted Twisty Faster floating that idea back on the Antioch thread. Then, people would still have sex, but would only initiate with people they trusted not to turn them in. How do we know that people will not become celibate and let the species die? Because people whose preferred modes of sexual intimacy have been outlawed have risked their freedom and their lives for what fulfills them — see pre-Stonewall gay culture; and see BDSMers, whose conduct is of uncertain legality almost everywhere to this day. I could make a good argument based on the statutes and case law where I live that what my spouse does to me regularly with my consent is a felony.) See Little at 1359-61.

The “it will ruin sex” objection is one of several common objections that I think are rhetorical and fall apart under even casual scrutiny. For example:

“Why does the guy have to secure consent?”

He doesn’t. It’s a gender-neutral obligation. Initiator secures consent. Worked fine at Antioch.

“What if they are both drunk?”

Same answer.

“What if nobody initiates?”

Not possible. If two people lay in bed next to each other, no sexual contact takes place. If we mush up “sex” into some gauzy montage, and refuse to consider it as anything but a unified whole, it becomes possible to have a confused situation about initiation. But each act has to have an initiator. It is that person who has the obligation in the first instance.

“What if they initiate mutually?”

Well, that’s enthusiastic participation. If two people lean in to kiss each other at the same time and stick their tongues in each other’s mouths, I think we can be pretty clear on consent.

“But … Isn’t It Awkward?”

Well, here’s the beauty of it. It isn’t, because people can always bargain around the law in private arrangements, and law provides a background rule. The person initiating has the obligation to secure consent. In the presence of enthusiastic participation, that person may be so clear on the existence of consent that they don’t need a verbal confirmation — but they have to be willing to assume the risk of error. The non-initiator, if they are for example a survivor who freezes, faces serious consequences from a mistake, and the initiator faces serious consequences from a mistake theoretically (but not actually because there are no convictions in these situations). But the initiator is more able to avoid the mistake by checking for affirmative consent. As I recall, “stop if your partner goes limp” was a rule of Fight Club. If a bunch of guys fighting in a basement can observe that, we can expect it between sex partners, I should think.

The other way to “bargain around the rule” is to explicitly agree that silence equals consent and set other conditions for revocation, which is what BDSMers do with safewords and safesigns. Empirically, the experiment worked at Antioch, where the students loved the policy.

“What About False Allegations?”

This is the biggest objection when talking about the law of rape, and high-profile cases that fell apart such as Duke and Hofstra have added ammunition to those folks who argue that false allegations are a common problem – not because they are, but because people tend to view as common what they have heard about.

Little deals with this well in his note, and I’ll quote the section in full:

A. The Bogeyman of the False Allegation

The fear of a false accusation of rape is well documented. What is also well documented is the fact that false accusations of rape are no more prevalent than false accusations of other types of major crime. Indeed, when such false accusations do occur, they tend to be made by young women, and are dealt with rapidly and efficiently by the police. Prosecutors act as an effective screening mechanism here as well—given the difficulty of convicting a rapist, they tend only to prosecute the clearest cut cases, where the chances of conviction are greatest.

The problem is not that rape is over-reported, but instead that it is under-reported. The fact that rape is under-reported is hardly disputed. To some extent, the under-reporting of rape can be seen as the result of the treatment victims receive at the hands of the legal system. It is common that women report a second, non-physical, violation, this time at the hands of the courts and defense attorney. Another explanation for under-reporting, however, is that many victims do not view what happened to them as a crime. The Ms. survey data indicate that only 27 percent of those whose experiences met the legal definition of rape considered themselves rape victims. More disturbingly, 42 percent of those who had been raped reported later having consensual sex with the man who raped them.

Critics, such as Roiphe, argue that these numbers indicate that rape has not occurred at all in the situations considered. An alternative view sees this response as the product of societal factors. “Rather, it is one where the moral lessons taught by society make it difficult for many women to understand when they have been the victim of rape.” Many believe that no woman would ever go back for another encounter with a man who had raped her. Such behavior, however, has been explained by a need to normalize the situation, especially when the initial rape occurred in a dating environment. By having later consensual sex with the rapist, the victim can be seen as
attempting to regularize her world and regain a degree of control over the situation.

That a woman does not realize she has been raped does not, of course, mean that the rape has not occurred. The victim of theft by deception is still a victim of theft, whether she realizes it or not. More importantly, this under-recognition of rape by the victims themselves may be a result of societal factors. When women see the way other women who have been date raped are treated, they may not wish to place themselves in the same category, even on a subconscious level.

Women raised in a society that does not teach girls they have the right to control access to their own bodies may, quite reasonably, not recognize that an action is rape. After all, if society and the media do not consider such a thing to be rape, it is perfectly plausible that those who grow up under that influence will also not consider it to be rape.

Different groups within society clearly define what level of force is acceptable for a man to use in different ways. For example, 31 percent of women who expressed no religious affiliation claimed in the National Health and Social Life Survey that they had been forced to do something sexual by a male. Only 17 percent of Catholics answered yes to the same question, along with 21-25 percent of Protestants. It appears likely that such a large differential is the result of a different definition of what constitutes force, as opposed to any difference between the men to whom the women interviewed are exposed.

[p. 1357-58, internal citations omitted.]

The Limitations Of Changing The Standard

I said above that I would return to philosophy of law. Here it is: if I go to the Field Museum in Chicago, I can see the stuffed bodies of the Tsavo Lions, made semi-famous in that Val Kilmer movie, The Ghost And The Darkness. But those are not lions. Those are just lion skins mounted on sculptures. Looking at them tells me something about how a lion is built. Looking at a veterinary textbook can tell me a lot about how a lion’s digestive system works, and watching a documentary can tell me a lot about how a lioness hunts. But a sculpture is not a lion, and a textbook is not a lion, and a documentary is not a lion. A lion is a living, breathing animal.

The law is a living, breathing animal. What the legislature passes, what appears in a book in black letters on a white page, is no more the law than the textbook is the lion. Law is a structure for adjudication. What the legislature passes that police won’t arrest for, prosecutors won’t prosecute and juries won’t convict is just a set of words on a page. The law is what happens – or as one lawyer friend puts it, “exercises of power and excuses therefor.” I’m not a legal philosopher, and I’m sure Ron Dworkin would say I have it all wrong (so would Stanley Fish, and Fish and Dworkin famously disagree), but that’s my view.

What does that mean? As I said in an earlier post, about a jury that refused to convict a man who assaulted and raped a sex worker in Australia, (and this portion got widely retweeted):

This is not a legal problem. This is not a problem statutory reform can solve. Her work was legal where she was doing it. She was a service provider engaged in a lawful business enterprise … And this is not an enforcement problem. The police made an arrest and the prosecutors brought the case. The judge didn’t throw it out. The case went all the way to a jury.

This is a cultural problem.

[Emphasis supplied.]

Little recognizes this, too. He says:

Ultimately, the matter of whether a woman consented or not will come down to a matter of belief by the jury. Simply moving to an affirmative consent standard does not prevent the accused from claiming that he asked permission and the woman gave it to him.

[p. 1347.]

It is this issue of belief by the jury that is the major problem. It has led some commentators to rather radical suggestions. Donald Dripps, a law professor at the University of San Diego, wrote an article about his proposed solution, titled After Rape Law: Will The Turn To Consent Normalize The Prosecution Of Sexual Assault? It was published as part of the Akron Law Review’s colloquium on rape, which they put online. Dripp’s solution is to create lower degrees of sexual assault offenses that have very small penalties, which he acknowledges is problematic (I think more than he accepts), but it’s not nearly as ill-considered as it may at first sound. Here’s the method to his madness: in the U.S., the accused has a right to a jury trial only for offenses that can result in more than six months’ incarceration. So-called B Misdemeanors exist in all or substantially all the states for this reason, and with maximum sentences of just 6 months or less, they can be tried in front of a judge whether the accused likes it or not.

I’m endorsing Dripp’s thinking as interesting, but not as persuasive, and I’m not endorsing much of his language. His article can be a frustrating read for many reasons, including assumptions buried in it that will be foreign to people who don’t spend time on criminal justice issues, and an unrepentant elitism. I’ll let him make his own point:

My thesis holds that rape exceptionalism is rooted in a divide between elite opinion, reflected in statutes, court decisions, and academic commentary, and popular opinion, as reflected in jury verdicts. Elite opinion values sexual autonomy and suspects, when it does not despise, sexual aggression. Popular opinion supposes that sexual autonomy may be forfeited by female promiscuity or flirtation, and views male sexual aggression as natural, if not indeed admirable.

[p. 958.]

To be clear, because it isn’t from the quote but it is from the piece, Dripps thinks that respecting consent and autonomy is right, and what he calls “popular opinion” is just plain wrong. I’ll unpack his language a little. Where he says, “rape exceptionalism” he means that there have been attempts to make it easier to prosecute rape by changing things like substantive statutes and evidentiary rules. He discusses some of those, and says, “Sadly, these departures from basic principles of both criminal law and the law of evidence have done little to increase the prosecution’s ability to win justified convictions. Conviction rates in rape cases remain the lowest for any of the serious felonies.” [P.966, internal citations omitted.] Where he says “popular opinion,” readers of this blog can simply substitute Rape Culture.

As I indicated, Dripp argues, “clever defense lawyers are able to play on popular opinion and invite nullification of the legislature’s facial prohibition of sex without consent … we must bypass the jury openly.” [Pp. 959-60.] He backs this up with references to juror research that I have not read, but I think he’s right that juries are a major factor in the inability of acquaintance rape survivors to get justice from the criminal process. Dripp places it as not just a factor, but the absolute limiting factor. He continues:

Linda Fairstein, the well-known New York prosecutor, confirms the social science from a blood-under-the-nails perspective. She declared in 1993: “Although our laws now permit us to prosecute them, not until we are able to inform and educate the public – the men and women who serve on our juries – will we be able to convict more of the men who are guilty of acquaintance rape.”

The familiar jury myth of “justified rape” is very much still with us. When the victim met the defendant at a pick-up bar, or asked the defendant into her room, or accepts a ride home from him, jurors remain willing to believe that she asked for what she got. Such opinions, moreover, seem about as common among women as among men.

If the root problem is, as Professor Bryden concludes after deep research, jury reluctance to convict men accused of raping women who have violated traditional sexual mores, the turn to consent will fail to normalize rape law. Prosecutorial discretion will be constrained not just by the cost of trial, a cost all felony defendants may bargain with, but also by a high risk of acquittal at trial, an asset most felony defendants do not enjoy. We can expect legislatures and courts to continue trying to help the prosecution by legal interpretations, and by evidentiary rules and rulings, that would not be forthcoming outside the sexual assault context. And we can continue to expect that these heterodox maneuvers will fail to secure convictions at anything like the levels that prevail for other felonies.

[Pp. 972-73, internal citations omitted, emphasis supplied.]

This understanding leads to Dripp’s policy proposal: a “sex without consent” statute, a B misdemeanor that could be prosecuted before a judge and not a jury. There are benefits but also serious problems to this.

The most serious in my mind is that we already live in a culture which doesn’t consider anything but violent stranger rape as “real rape.” Some folks may worry that the use of a lesser included offense would trivialize rape by saying that it is only “worth” six months, that it isn’t serious. I would put is a little differently. The subjects in Lisak’s research raped women, and they admitted it, but they didn’t want to use the term “rape.” Commentators are inventing new terms, like Laura Sessions Stepp’s “grey rape” to separate some rapes from others and keep from calling the alcohol-fueled rape of friends (which Lisak’s research tells us is the norm) by the same name we use for the stranger-in-the-bushes assault. I think in many quarters, rape is considered serious, but the effort to narrow what is recognized as rape is so successful that the term remains an island describing a tiny portion of sexual assaults. Dripp’s proposal would further, and in fact codify, a division between “real rape” and some sort of lesser stuff that society will continue to refuse to call rape.

One concern Dripp overlooks is that judges are a product of the same society with the same prejudices. I don’t have time to look for all the posts about awful things judges have said about rape survivors; there are many and Cara has chronicled a good number of them at The Curvature. I particularly recall Judge Theresa Carr Deni. Does anyone think a bench trial in her court would go better for the survivor than a trial before a jury? Me neither.

Dripp identifies another concern; that six months just does not do enough. He brushes this aside with the idea that consecutive sentences for repeat offenses, enhancements and sex offender registration will combine to impose punishment. Here, I think he’s basically right, but mostly for another reason. Lisak’s research shows that most rapes are by recidivist predators. Even if the sentence is short, an adjudication in the first case for a misdemeanor that could serve as prior bad acts evidence in a future trial would make it much, much easier for a survivor to get justice before a jury. Tagging them once, however lightly, would vastly increase the chance of taking the predators out of the population at some point before they reach their normal average of six victims, and would mark them as men to be avoided by targets that might otherwise get to know and trust them.

Dripp comes to the conclusion that the complete failure to get convictions now means that his solution imposing some punishment is vastly better than the status quo. I understand his thinking, but I come down the other way because I think that the effect of further marginalizing anything but the traditional stranger rape narrative would end up doing more harm than good.

How To Change The Law

If law were words on a page, changing it might be difficult, but it would not be complicated. If law is a living system, and part of our social structure, and includes the police and the prosecutors and the judges and the juries, then changing it is not just difficult but slow and complicated. A change to basic social structures requires a change to the society.

In my essay for the Yes Means Yes book, Toward A Performance Model of Sex, I introduced the idea of a “social license to operate.” I expanded on that thought in Meet The Predators:

Change the culture. We are not going to pull six or ten or twelve million men out of the U.S. population over any short period, so if we are going to put a dent in the prevalence of rape, we need to change the environment that the rapist operates in. Choose not to be part of a rape-supportive environment. Rape jokes are not jokes. Woman-hating jokes are not jokes. These guys are telling you what they think. When you laugh along to get their approval, you give them yours. You tell them that the social license to operate is in force … What they do is what works. They rape their drunk acquaintances because it works. They rape their drunk acquaintances because we let them.

We need to revoke the rapists’ social license to operate. We need to stop asking, “why do we think he didn’t know she wasn’t consenting,” which is the first question now, really. First as a cultural matter — leaving the legal matter aside — we need to adopt the stance that sexual interaction ought to always be had in a state of affirmative consent by all participants; that anything else is aberrant. If someone says, “I was sexually assaulted,” the first question should be, “why was a person continuing with sexual activity when zir partner did not want to?”

[Emphasis supplied.]

Little makes a similar point, in a section called, “The Effects on Societal Attitudes”. [P. 1355.] He says:

An affirmative consent standard would mark the law’s acceptance that women are full partners in a sexual encounter, and that their wishes should be given equal weight to those of the male participant. By requiring that the initiator of a sexual encounter request affirmative consent, the law would encourage discussion of sexual desires and express a clear disapproval of the stereotypes mentioned above. Of course, in and of itself, a change in the legal standard would not alter deeply engrained societal values overnight; however, there are many occasions on which the law has led popular culture. The Civil Rights Movement in the 1950s and 1960s can certainly be seen as a time when the law was ahead of popular sentiment, and had the effect of changing popular culture to a greater or lesser extent. A similar effect can be expected from affirmative consent. By requiring men (as the usual, and socially presupposed initiators) to gain consent for sexual activity from their partners, such open discussion of sexuality is likely to become more commonplace. It becomes harder for women to play the coy role that society expects and still engage in the sexual activity that they wish if men must ask permission. As such, it is likely that the social stereotype will start to break down, and women who consent to sex will be seen as the norm.

[Pp.1355-56, internal citations omitted, emphasis supplied.] (I note here that Little explains early on (at p. 1325) his decision to limit his analysis to rape of women by men, which necessarily leaves a lot of people out. However, I think the proposal to center consent and mandate affirmative consent in the substantive law of rape is not an idea limited to addressing the rape of women by men.)

Here’s the “legal positivist” in me: the blackletter law is a societal expression, though not a complete one. People look to what the statutes say as a statement of values, and the effects of what the statutes say on how people understand rights and duties in forever intertwined with the effect of people’s understanding on how they will and won’t apply the law. It’s a slow, halting dance forward. The more we say with our laws that consent is the norm and its absence is aberrant, the more that becomes not just a feminist ideological point but the collective wisdom of the culture, and with it the police and prosecutors and judges and the folks who serve on juries gradually, way too gradually, move forward to accept that and do that. And when they do that, when they act on the understanding that the absence of consent is the defining characteristic of rape, then it is the law.

I need to thank Jaclyn for her assistance with this piece. Its genesis was a discussion between us where she got me to work out the basic structure, and then the research I did as a result, and then she added her thoughts about Professor Dripp’s proposal. I’m privileged to have smart and knowledgeable friends who never fail to enhance my understanding of the issues I write about. Anything I messed up, however, is entirely my fault.