Radicalizing Consent: Towards Implementing an Affirmative Consent Model in New York’s Rape Law
This post is a guest post by recently graduated JD and soon-to-be lawyer Andy Izenson. Andy’s note won the Outstanding Work award for a Capstone Project from the Justice Action Center at New York Law School. This is long and was written primarily for lawyers and law students, but it ought to be accessible enough to non-lawyers interested in reading a primarily legal piece.
By way of disclosure: (1) after a mutual friend put us in touch, I provided some thoughts and sources for the article; (2) the author cites my writing for this blog; (3) at the author’s request I participated in a panel discussion of the article’s proposals, which panel is discussed in the text; and (4) the author and I have become involved in anti-rape activist projects together.
The author can be reached at firstname.lastname@example.org.
The legal system’s treatment of rape is a pervasive problem in New York, as well as in the rest of the United States, and the legal problem is closely intertwined with a cultural problem. Rape tends to be underreported; when reported, it often doesn’t result in prosecution; when prosecuted, the conviction rate is low. This is a global problem which feminists and anti-violence activists have been working to address through legal and non-legal avenues since at least the late 1960s, when the second-wave feminist movement reconceptualized rape from a crime committed by “pathological men unable to control their sexual desires” to a more widespread symptom of the overarching structures of gendered power and violence implicit in society.
These structures, which many feminists term “rape culture,” place on the victims the responsibility to prevent rape – by dressing and behaving in certain ways, by clearly communicating lack of consent, and often by physically resisting sexual contact to the point of self-endangerment. In criminal law, rape culture is embodied by the fact that consent to sexual activity alleged to be rape is presumed unless the prosecution is able to prove to the jury’s satisfaction that the rape victim clearly and actively refused consent, and further that he or she did not by dress, appearance, foreplay, or otherwise, “invite” the rape. Basic legal and cultural changes are needed on every level to break rape culture’s self-reinforcing cycle.
The cycle of rape survivors’ reluctance to report the crime to the police and the justice system’s failure to adequately deal with the reports that they do receive must be broken by fundamental changes in our law, and ultimately in our society. The specific legal and culturally embedded factors that reinforce this cycle and that I believe can be mitigated by the application of these and other legal and cultural changes are: the significant difference between the legal and cultural definitions of rape and an obsolete legal and cultural understanding of consent. If the law is amended such that it no longer reinforces these cultural problems, it may help to break this cycle. This paper proposes three such legal changes to alter New York’s criminal law system to better serve survivors of rape – specifically, of rape in the third degree, which is rape that occurs not by forcible compulsion, nor by inability to consent, but by lack of consent under the totality of the circumstances.
The changes I propose are as follows: (1) the definition of “lack of consent” in New York Penal Law (“NYPL”) 130.05(2)(d) should be rewritten to incorporate affirmative consent as a policy goal, (2) the affirmative defenses to rape in NYPL 130.10 should be rewritten to include “reasonable mistake of fact” in order to remedy the lack of mens rea requirement in the statute by requiring that a defendant prove that he or she was at least not negligent in failing to know that no consent had been given, and (3) the jury instructions for the crime of rape in the 3rd degree should be expanded to mitigate the juries’ cultural preconceptions about what does and does not constitute rape.
In order to fully discuss the distance between the cultural and legal definitions of rape, it is necessary to understand two supporting concepts; rape culture and victim blaming. The topic of rape culture alone has filled books, references to which will be included for further education for interested readers. A rape culture, as defined in the book “Transforming a Rape Culture” is “a complex of beliefs that encourages male sexual aggression and supports violence against women… in [which] women perceive a continuum of threatened violence that ranges from sexual remarks to sexual touching to rape itself…In a rape culture both men and women assume that sexual violence is a fact of life, inevitable as death or taxes.” Melissa McEwan at Shakespeare’s Sister elaborates: “Rape culture is 1 in 6 women (and 1 in 33 men) being sexually assaulted in their lifetimes…[it] is victim blaming…[it] is tasking victims with the burden of rape prevention. ..Rape culture is the idea that only certain people rape – and only certain people can get raped…the narrative that sex workers can’t be raped…Rape culture is treating women’s bodies like public property.”
An example from recent news may help to ground this concept. In March 2011, a the author of a New York Times article titled “Vicious Assault Shakes Town” described the trauma inflicted upon the lives of eighteen young men from Cleveland, Texas after accusations were brought against them. He described how the community was “rocked…to its core” and quoted a community member saying “These boys have to live with this the rest of their lives,” and worrying that they may not be able to return to school. The allegations whose devastating effect on their subjects was the main focus of the article were that the eighteen men had gang-raped an eleven year old girl, threatened to beat her if she did not comply, and videotaped the gang-rape on their cell phones. According to the author of the article, residents of the neighborhood described the eleven-year-old as “dress[ing] older than her age, wearing makeup and fashions more appropriate to a woman in her 20s, [and] hang[ing] out with teenage boys at a playground,” and questioned “What was her mother thinking?” and “How could [these] young men have been drawn into such an act?” (Emphasis added.)
A key part of rape culture is victim-blaming. SlutwalkNYC, a group which organizes against sexual violence, defines victim-blaming thus:
Victim-blaming is…unfairly blaming someone for the violence that was done unto them. When it comes to sexual harassment, assault or rape, victim-blaming manifests in a number of ways. Post-assault, people often find that their choices and actions surrounding the assault (and sometimes their entire sexual history and other past behaviors) are put under a microscope. Was their outfit too provocative? Were they wearing too much makeup? Were they walking out too late? Were they in a “bad” neighborhood? Were they drinking? Were they dancing? Does their gender expression deviate from feminine or masculine norms in some way? Questions like these are asked by the legal system, the media and society, who look for some reason to put blame on a person who has experienced violence in order to explain WHY that violence was done to them. This gives others reasons to believe they will remain safe, if only they do not behave/dress/be the way that the person who was assaulted behaves/dresses/is.
The desire to distance oneself from danger by creating false causative relationships between a survivor’s behavior and experience, while understandable on a psychological level, has been embedded so deeply in our culture that it has become a radical proposition to suggest that the primary blame for a person’s traumatic experience lies with his or her rapist, rather than with his or her choices.
This idea that a person may avoid being raped if she simply conforms to the correct and culturally prescribed patterns of behavior has legal as well as cultural ramifications. The cultural placement of responsibility on potential victims to avoid being attacked reinforces the placement of legal responsibility on survivors to prove the validity of those attacks – historically, by proving resistance to the point of self-endangerment, then by proving that they were subjected to forcible compulsion, and now by meeting the standard of “clearly communicating lack of consent.” Because of this cultural and legal responsibility, many rape trials become re-traumatizing examinations of the behavior of the survivor, which is a factor in the reluctance of many survivors to come forward about their experience.
Further, there are not many ways in which feminists and anti-violence activists can use the legal system as a tool. Many people who have experienced rape choose not to seek redress through the legal system because there are so many horror stories of how poorly the legal system treats complaining witnesses in rape prosecutions – for example, in early 2012, a Georgia judge pulled a gun on a woman who was testifying against her rapist, and a woman in Texas who was hiding naked in a closet after being raped by two strangers was ordered to leave the closet by two male police officers. When she told them that she didn’t feel comfortable leaving the closet and wanted to speak to a female officer, one of the police officers punched her in the face hard enough to fracture the right orbital in her face, forcibly removed her from the closet, and transported her to the hospital for a rape exam in handcuffs. Further, many prosecutors will refuse to bring charges for rapes that fall in the “date rape”/”gray rape” spectrum or where the facts do not fit the cultural narrative of what “real rape” looks like. One prosecutor interviewed said “[The] ‘must win’ mentality makes prosecutors reluctant to proceed with cases that have a low possibility of conviction.”
Many activists choose to target their efforts towards support of survivors outside of the criminal justice system for these reasons. However, it is also worthwhile to pursue progress within the legal system in order to support those survivors who choose that route.
A significant disparity exists between our cultural understanding of what constitutes rape, and the actual legal definition. There is a persistent myth that equates the term “rape” with an extremely narrow swath of cases that fall under the actual legal definition of rape. The term “real rape” was defined in Susan Estrich’s 1988 paper “Real Rape” as “the stereotype of [penile-vaginal] assault committed by an armed stranger with a great deal of force,” and any other encounter that may fall under the legal definition of “rape” is culturally sidelined as “not real.” However, crimes that fit the “real rape” narrative account for a very small fraction of those committed in the United States today. The majority of rapes are committed by acquaintances or intimate partners, but the failure of these encounters to conform to the cultural narrative means that they are rarely identified as “rape.” The infamous survey of college campuses conducted by psychologist Mary Koss for Ms. Magazine in 1988 reported that one in four women was a victim of rape or attempted rape, and only 16% of those rapes were committed by a stranger. Furthermore, only 27% of the women surveyed whose experience met the legal definition of rape in the relevant jurisdiction considered themselves to have been raped, and only 16% of the men whose acts met that legal definition considered their actions to be rape.
Many of the cases that fall under the legal, but not cultural, definition of rape are the cases whose legal outcome may be altered by a move to enthusiastic consent. A term coined by an infamous Cosmopolitan article from 2007 for this type of encounter is “gray rape.”
“No. Stop,” she said softly — too softly, she later told herself. When he ignored her and entered her anyway, she tensed up and tried to go numb until it was over … “It fell into a gray area,” she said recently. “Maybe I wasn’t forceful enough in saying I didn’t want it.”
[“Gray rape”] refers to sex that falls somewhere between consent and denial and is even more confusing than date rape because often both parties are unsure of who wanted what.
“Gray rape,” “date rape,” and other terms used to distinguish these encounters from culturally accepted “real rape” describe situations where the rape is effectuated by intoxicants, coercion, or otherwise overpowering of the will, rather than by physical force or threat. The most famous case of this was the high-profile arrest of Kobe Bryant in 2003. These charges were dropped after Bryant issued a public apology stating in relevant part, “Although I truly believe the encounter between us was consensual, I recognize now that she did not.” These cases are understood by most to be inevitable, if unfortunate, miscommunication, or the understandable consequence of hook-up culture and binge drinking – rather than what they are: crimes.
The crux of the problem is that the New York standard for proving rape in the absence of forcible compulsion or inability to consent depends on a jury evaluation of the clarity with which the survivor can be proven to have withdrawn consent to sexual activity. Sex that occurs under the circumstances of “lack of consent” as defined in NYPL 130.05, where the victim has capacity to consent but clearly expresses a lack of consent to the perpetrator, constitutes Rape in the 3rd Degree, a Class E Felony punishable by up to four years in prison. This is a straightforward legislative expression of the traditional anti-date rape slogan “No means no.”
As such, it is completely insufficient in today’s culture. This statute is perfectly representative of the ways in which penal law embodies and reinforces rape culture, in that the burden to create, and subsequently prove the existence of, the distinction between consensual sex and rape falls on the wrong party. There is no question that a sexual aggressor erring with regards to whether or not consent to sexual activity exists has devastating consequences for the object of such aggression. With stakes this high, avoiding this error justifies reallocating the obligations of creating and establishing that distinction to the sexual aggressor, and subsequently the defendant. The cycle of lawmakers enacting into statute the normalization of sexual violence into which they spent their life being enculturated must be broken in order to eradicate that sexual violence, and one step towards breaking that cycle is the propagation and legislation of the idea of affirmative consent.
Affirmative consent is a drastic legal and sociocultural reimagining of what it means to validly consent to sexual activity. “As a cultural matter…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 a sexual activity when zir partner did not want to?’” Put simply, the concept of “affirmative consent” (or “AC”) is the explicit rejection of the culturally embedded (and legally perpetuated) idea that consent to sexual relations can be presumed unless explicitly revoked; rather, parties who enter into sexual interactions should be responsible for communicating with their partner to ensure that explicit, voluntary, and informed consent exists. AC is a principle pioneered by the feminist activists Jaclyn Friedman and Jessica Valenti in their book “Yes Means Yes: Visions of Female Sexual Power and a World Without Rape,” and it has been embraced by the queer and radical community as an active method for fighting rape culture, and it is possible that working to institute it as a legal standard in rape cases will be a step towards the successful prosecution of “gray rape” and “date rape” cases and, ultimately, a force to dismantle the barrier between those cases and “real rape.”
In Unwanted Sex: The Culture of Intimidation and the Failure of the Law, Schulhofer defined the concept of affirmative consent succinctly. “For such [sexual] intrusions, actual permission – nothing less than positive willingness, clearly communicated – should ever count as consent.” Affirmative consent is also called “enthusiastic consent” or “continuous consent,” but as Millar writes, a standard of affirmative consent is “the right standard for determining when one’s sex partner is consenting…[it] is not at all ambiguous.” Antioch College implemented a policy of affirmative consent for sexual interactions occurring between its students, and that policy, though much-maligned, is well-stated.
This consent policy is comprehensive and certainly admirable as a goal to set for individual interactions. It was criticized as being impossible to fulfill, “hysterical,” and operating under “the stereotypical conviction that women are weak and men are beasts.” The lesson to be taken from this is that many people are very resistant to the idea of communicating about sex, and especially to being told to communicate about sex. This reluctance must be taken into account when considering the extent to which it may be possible to mandate sexual communication. While a policy like Antioch’s can be used academically as an enumeration of the implications of a serious personal commitment to affirmative consent, it may be a step too far to be feasible on a large scale. A statement like “all parties must use safer sex practices” is hortatory and does not translate well into legal mandate, but the Antioch code’s requirements that “consent is required each and every time there is sexual activity” and “silence is not consent” can plausibly be incorporated into a legal standard. The legal reforms proposed herein are simply a strengthened commitment to the presumption that no consent to sex exists unless it is affirmatively and verbally given. While Antioch’s tenets may be beyond the upper limit of what can be legislated, their reinstitution at Antioch and at other colleges, universities, and even high schools as part of a Sex Education curriculum that works to normalize communication about sex could help to fight rape culture and its effects.
Statutory Reform Proposals
The NYPL contains three degrees of rape. Rape in the first degree, a B felony, occurs when the victim is physically helpless – meaning, here, that the victim is either unconscious or physically unable to communicate unwillingness to an act – or less than eleven years old, or when the act is committed by forcible compulsion, meaning either the use of physical force or an express or implied threat which places the victim in fear of immediate death or physical injury to him- or herself or to another, or the fear that he, she, or another person will immediately be kidnapped. Rape in the second degree occurs when the victim is less than 15 or incapable of consent by reason of mental disability or incapacitation. (Mental disability refers to a “mental disease or defect which renders [the victim] incapable of appraising the nature of his or her conduct,” while mental incapacitation refers to a temporary state of inability to appraise or control one’s conduct “owing to the influence of a narcotic or intoxicating substance administered to [the victim] without his [or her] consent.” Rape in the third degree occurs when the victim is capable of consent, but does not consent.
NYPL 130.05 is the “definitions” section of the rape statutes. It states that “whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without the consent of the victim,” and that “lack of consent results from circumstances…where the offense charged is rape in the third degree as defined in subdivision three of section 130.25 [where the lack of consent to the act is by reason of some factor other than incapacity to consent]… and the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances.” (130.05(1)(d))
There are two major flaws with this statute. The first is that the requirement that the prosecution prove that a survivor clearly expressed a lack of consent in order for the case to succeed. Requiring a survivor to prove the clarity with which he or she expressed that he or she was not consenting to sexual contact is an echo of the resistance requirement of New York’s obsolete, victim-blaming common law. Further, policy should dictate that “consent” under any definition of the word is almost never validly expressed by silence. Especially in this area, where an incorrect perception of consent can be the difference between a constitutionally protected activity and a felony, the stakes are high enough that it makes sense to mandate explicit communication, imposing an obligation to avoid misperception in order to reallocate the risk to the less vulnerable party. Instead of requiring that the survivor must prove the existence of an affirmative speech act in order to seek redress, the statute would better serve the goals of substantial justice and procedural fairness by requiring that the defendant prove the existence of an affirmative speech act in order to raise a defense.
The second flaw with New York’s rape statute is that it completely lacks any statutory guidance on the required mens rea for the crime of rape in any degree. At common law, rape was a crime of general intent, requiring “carnal knowledge of a woman forcibly and against her will,” that the incident be reported promptly, that the story be corroborated, and that the survivor prove “utmost resistance,” which requirement caused many judgments to hinge on the judge’s opinion of the sufficiency of the survivor’s resistance. The statute is a codification of this common law, and so the lack of mens rea and the resistance requirement have lingered, first in the form of physical force requirements, and more recently, in the lack of statutory acknowledgment of the fact that rape victims respond to their assaults in a variety of ways, including “freezing” and “numbing fear” leading to an inability to clearly communicate lack of consent sufficient to convict under the current statute.
A New York Court of Appeals case stated as dicta that “intent is implicitly an element of the crime” of rape in the first degree, although the case did not explain its reasoning or cite authority, and then culminated in a ruling contradictory to that, ruling that if forcible compulsion is used, then the defendant must have known that the victim was an unwilling participant. This failure to distinguish the mens rea and actus reus – essentially treating the element of lack of consent as a strict liability element – gives no guidance on the mens rea in a rape that did not involve forcible compulsion. This deficiency in the statute keeps the focus of the trials on the behavior and state of mind of the survivor rather than on those of the defendant, which reinforces the victim-blaming cultural attitude inherent in rape culture. There is a textual basis for inferring strict liability from a lack of specified mens rea, but since there’s a presumption against strict liability, the most likely presumptive mens rea is negligence.
Section 130.05(1)(d) should be amended to the following: “Lack of consent results from circumstances under which, at the time of the act of sexual conduct, the complainant did not unambiguously express that he or she consented to the act.” This amendment to the statute should also include an insertion in section 130.10, the defenses section, which would state: “In any prosecution for the crime of rape in the third degree as described by section 130.05(1)(d), it shall be an affirmative defense that the defendant understood the victim’s words and actions to be an unambiguous expression of affirmative consent, and that a reasonable person in the defendant’s situation would have understood such words and actions to be an unambiguous expression of affirmative consent.”
The first change to the statute would ingrain the policy goal of “yes means yes” into the requirements of the statute by requiring the prosecution to prove the absence of unambiguous affirmative consent, rather than requiring the jury to make a judgment about the clarity of the survivor’s protestations (the modern term for “resistance,” perhaps.) This is crucial for individual prosecutions, where this change would shift the scrutiny of the trial from the actions of a survivor during his or her assault to the behavior of the defendant. It is also crucial as a policy shift in the long term – if combined with sex education, it may help to break the spiral of victim-blaming culture and repeated failure of the justice system to adequately respond that leads to such egregious underreporting.
The second change would create a mens rea requirement in the statute. By providing an affirmative defense in the case that the defendant reasonably believed that the victim was consenting, it requires that a defendant attempting to raise the defense prove that he or she was not negligent in believing that the encounter was consensual. A mens rea requirement of negligence with regard to the element of lack of consent of rape in the third degree would require that a sexual aggressor take reasonable care in obtaining unambiguous affirmative consent before progressing with sexual activity, and ease prosecution in date rape and acquaintance rape cases that occur without forcible compulsion or issues of capacity to consent. Further, a mens rea requirement in the statute would put the focus of a trial on the state of mind of the defendant, rather than on the actions or credibility of the survivor, and the placement of this element as an affirmative defense rather than as an element of the statute places the burden of proof on the defendant to prove that he or she was not negligent in his or her mistaken belief that affirmative consent had been unambiguously expressed, rather than placing the burden of proof on the prosecution that such mistaken belief was unreasonable or negligent.
Jury Instructions Proposal
The model jury instructions for rape in the third degree in New York are, in relevant part, as follows:
RAPE THIRD DEGREE (E Felony) (Lack of Consent – Totality of Circumstances) PENAL LAW 130.25(3)
Under our law, a person is guilty of Rape in the Third Degree, when he or she engages in sexual intercourse with another person without such person’s consent.
A person engages in sexual intercourse with another person WITHOUT SUCH PERSON’S CONSENT when there is a lack of consent to the act. Lack of consent results from circumstances under which, at the time of the act of intercourse, the complainant clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood the complainant’s words and acts as an expression of lack of consent to such act under all the circumstances. (See Penal Law §130.05(2)(d).)
In order for you to find the defendant guilty of this crime, the People are required to prove, from all the evidence in the case, beyond a reasonable doubt, both of the following two elements:
1. That on or about (date), in the county of (county) the defendant (defendant’s name), engaged in sexual intercourse with (complainant’s name); and,
2. That the defendant did so without (complainant’s name) consent.
In 1993, Linda Fairstein, a New York Prosecutor, said, “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 [people] who are guilty of acquaintance rape.” Juries remain reluctant to convict defendants whose victims have violated traditional sexual mores due to the victim-blaming based idea, embedded in juries’ interpretations of facts, that when a person fails to conform to prescribed sexual behavior, their rape is justified. “A jury may decide that a victim who engaged in risky behavior is not as worthy of protection as a victim who did not engage in risky behavior… [or] may believe that the victim’s risky behavior translated into a “yes” and was equivalent to consent; therefore, they may find the defendant not guilty.” Or, as Dripps put it, “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.”
Dripps believes that the only way to solve the jury problem is to bypass the jury entirely by creating a second class of crimes for non-forcible rape with maximum sentences of six months, which is the maximum permitted sentence for a verdict rendered without a jury. Under Dripps’ plan, the standard felony process for these crimes would be replaced by a special sex crimes court, “sitting without a jury but with no jurisdiction to exceed the Supreme Court’s six-month constitutional limit.” This plan has the potential downside of reinforcing the barrier between the types of non-forcible rape crimes that would be seen before this special court and “real rape.”
Juries’ reluctance to convict date or acquaintance rapists arises out of the enculturation of the individual jury members in rape culture. Instead of bypassing them entirely (and thereby setting the maximum sentence at six months), it may be a more feasible step to work to educate the juries on the bench. A proposed rewrite of the relevant section of the jury instructions:
A person engages in sexual intercourse with another person WITHOUT SUCH PERSON’S CONSENT when there is a lack of consent to the act. Lack of consent results from circumstances under which, at the time of the act of intercourse, the complainant did not unambiguously express that he or she consented to engage in such act. It is an affirmative defense that the defendant understood the victim’s words and actions to be an unambiguous expression of affirmative consent, and that a reasonable person in the defendant’s situation would have understood such words and actions to be an unambiguous expression of affirmative consent.
For the purposes of evaluating a defendant’s guilt or innocence under this statute, consent to sexual acts does not exist unless it is affirmatively, unambiguously, and voluntarily given. In no case can silence or a failure to communicate verbally or nonverbally constitute consent to sexual acts. If the People prove beyond a reasonable doubt that a defendant engaged in sexual acts with a person without such person having expressed unambiguous affirmative consent, you must find the defendant guilty.
It is a common strategy for jury instructions to directly address anticipated misconceptions about the law that the jurors may hold; these instructions tend to be intentionally fashioned to prevent potential jury misunderstanding or misapplication. These particular instructions should help to prevent jurors’ preconceptions about justified rape from stopping a defendant whose crime falls under the statute, but whose narrative falls short of Estrich’s “real rape.”
The most common argument against this proposal is that any proposal that makes rape accusations easier to prosecute will also make false rape accusations easier to prosecute, and that a higher standard of proof with regards to the sexual aggressor’s responsibility to obtain consent will lead to a higher incidence of malicious false reports. This fear has existed in one form or another for at least as long as jurisprudence on the topic of rape. Lord Chief Justice Matthew Hale in the seventeenth century articulated this fear: “Rape is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.” This overwhelmingly prevalent specter is rooted in what Dripps terms “rape exceptionalism” – the ways in which rape is substantially different from all other crimes. It is a crime in which the key element determining whether the behavior involved is criminal or constitutionally protected is not subject to physical evidence, and which almost always occurs without collaborating testimony. Of course, this fear is also based in “the cherished male assumption that female persons tend to lie.”
Phillip S. Rumney conducted a detailed investigation of all of the studies investigating incidence of false reporting of rape in several Western countries. The “widely held view that false allegations are common and easily made by vengeful or desperate women…[coupled with] incorrect or unreliable assumptions about false complaints provide a poor basis on which to develop appropriate policy responses to rape…[and] divert attention from genuine victims and may help to create a dangerous and unjustifiable skepticism among criminal justice professionals to all allegations of rape.” First, it is important to remember that there are circumstances that give rise to rape allegations which, while not maliciously fabricated, are deemed “unfounded” by FBI standards. “Unfounded” means that a case is found to be “false” (that is, “factually proven to have never occurred”) or “baseless” (a reported sexual assault that does not meet the elements of the crime according to the state’s penal code, often due to a mistaken understanding of the law.) Some of the more prominent investigations of the incidence of false allegations also conflate unfounded reports with recanted ones, where a complainant withdraws the accusation after filing it. The US DOJ estimated in 1997 that about 8% of forcible rapes reported to them were determined to be unfounded, compared to an estimate of 2% of unfounded reports for index crimes, but estimates vary widely.
This figure, when taken with the National Center for Victims of Crime statistic that only 21% of survivors of stranger rape and 2% of survivors of acquaintance, date, or intimate partner rape report their assault to the police, does not pose such a significant risk of miscarriage of justice that it justifies the widespread cultural skepticism of any reform that favors survivors. “Implicit in these complaints is an assumption that allegations of rape are prone to be false, so that men require special protection from them. [This is repudiated by] the absence of any evidence for this assumption and the increasing recognition that the guilty are all too often acquitted [or never arrested in the first place] in rape cases.”
On Friday, April 13th, 2012 at 12:40 PM, a panel discussion on the topic of this project was held at New York Law School. The panel consisted of John Hirsch, Staff Attorney in the Criminal Defense Practice of The Legal Aid Society, Thomas M. Millar, contributor to “Yes Means Yes” and “Affirmative Consent as a Legal Standard?” (see supra) and Rachael Dizard, an activist and criminal law clinic student at NYU. The panel began with a brief overview of the topic of the project, and then the panelists discussed the following questions:
- Obviously, since everyone here has chosen to invest at least a portion of their life in the legal profession, we don’t have an entirely unbiased set of opinions about the use of legislative change as an activist strategy. But given problems like this where the legal and cultural problems reinforce each other, how can we best form strategies that address both sides, or break the self-reinforcing cycle?
- Implementing affirmative consent as a legal standard through legislative amendments and revised jury instructions is one of several possible legal strategies. Do any of you want to comment on this as a strategy versus, for example, bringing an impact litigation suit to seek a favorable ruling, etc.? What are the drawbacks to the different types of legal strategies in such a high-stakes effort?
- More than one of the sources this proposal draws on have identified the jury’s refusal to convict rape that doesn’t fit the standard narrative of violent stranger rape as the problem. Are jury instructions an effective solution to this? How else can we address the problem of the jury’s preconceptions?
- How can you picture yourself advocating for or against a defendant under this statute and how would it differ from the status quo?
- What is your hope for the future on this issue?
The panelists first discussed strategies of activism through the legislature and the courts. Mr. Millar began by discussing the importance of reallocating the risk through explicit negotiation, then discussed the danger of a civil rights impact litigation strategy, citing Brown v. Board of Education, and the Supreme Court’s elimination of the death penalty which became moot within five years. When the court steps in where legislative avenues of action are blocked, there can be pushback, because of the impossibility of achieving change from one branch of government that does not affect all the branches. He compared the branches of government to a running animal, saying, “If one leg gets way out in front, the beast will fall,” and advised that any political change must be done holistically, with groundwork, and without expectation of the existence of shortcuts. Ms. Dizard agreed, expressing worry about pushback and highlighting the distance between the proposals and the common understanding of the difference between consensual sex and rape; she said, “Not everyone thinks that sex without affirmative consent is bad.”
Mr. Hirsch disagreed, identifying the proposals as “not too far a step,” and that it’s “okay for us to say ‘this is the law’ to protect victims,” even if the change is drastic. He was optimistic that the legal change itself and the process of working to implement it would themselves be educational; the anticipated pushback would be from people who simply don’t want to talk about sex, and that forcing those conversations into the spotlight could normalize people having conversations about the sex that they’re going to have. When asked his opinion about juries, he said “You’d be amazed at how often juries get it right…have a little faith in people and how seriously they take being in a jury room.” He was optimistic about the effect of a solid jury instruction on the likelihood of achieving a desired verdict.
Ms. Dizard expressed concern that the burden-shifting implied by the statutory amendment might run into constitutional problems. She suggested that it might be interpreted as criminalizing all sex, and could be understood to be overinclusive, and that the affirmative defense proposal could constitute a compulsion for a defendant to testify. (Mr. Hirsch disagreed, likening the affirmative defense of “consent” to the affirmative defense of “self-defense” to other crimes; there is no compulsion to testify, but the defendant must if he or she wishes to raise certain affirmative defenses.)
A question-and-answer period from the audience followed at which several audience members raised interesting substantive points, including the possibility of using a mens rea standard of recklessness (conscious disregard of a substantial and objective risk) or depraved indifference instead of negligence. Audience members also suggested other ways to improve the statute, such as including a requirement that consent be contemporaneous, including an explicit definition of consent to sexual activity, and making the distinction between consent as a state of mind versus as expressed.
The panel was intended to serve a specific purpose in the context of the project; it was not simply the presentation of the project. The first step in any sort of cultural change is education; to approach the people who don’t see a problem and alert them to the problem’s existence. In short, the purpose of the panel was to explain why these proposals exist to an audience who did not previously know the term “rape culture.” Educating non-activists and transforming them into potential allies is the beginning of coalition-building, and it is clear that a strong coalition will be necessary to combat the resistance that will occur in taking these proposals beyond academia.
The reactions of some of the members of the audience at the panel made it clear that this is a difficult and uncomfortable topic to discuss. We as a society are resistant to a conceptualization of sex that is prosaic enough to require negotiation, and the idea of mandating communication can be unnerving, but proponents of affirmative consent must be prepared to respond to that discomfort, especially with long-term legislative goals in mind. The opportunity to present these proposals to an uncertain audience in a controlled setting was an invaluable experience before future steps of presenting the proposals to the much more hostile audiences not consisting of self-selecting legal academics, students, and friends of the author.
The prevalence and cultural condoning of rape is accepted to be a manifestation of the gendered structures of power and violence in America today. Men and women grow up embedded in rape culture, steeped in the attitudes trickling down from jurisprudence through the media, and as attorneys, judges, and jurors, they perpetuate those attitudes through their arguments, judgments, and decisions. These negative attitudes have a tangible and devastating impact on the lives of people who experience rape and are then re-traumatized by a skeptical and unforgiving system. This proposed statutory and jury instruction reform is a step in an ongoing process of social reform that won’t happen overnight. Changing law and changing attitudes happen gradually and in conjunction with each other, and my hope in this project is that I can help New York take a step in that direction.
 According to the National Center for Victims of Crime, only 21% of women raped by strangers and only 2% of women raped by acquaintances, friends, or intimate partners reported the crime to the police. (http://www.ncvc.org/ncvc/main.aspx?dbName=DocumentViewer&DocumentID=32306)
 The FBI Uniform Crime Reports that 44.5% of forcible rape reports are cleared by arrest in the Northeast. This statistic does not include rape that is not committed by forcible compulsion, since the FBI’s definition of rape read “Carnal knowledge of a woman forcibly and against her will” until January of 2012, and has only since been updated to include non-forcible rape and rape of men. (http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/10tbl26.xls)
 Donat, P.L.N., and D’Emilio, J. (1998). A feminist redefinition of rape and sexual assault: Historical foundations and change. In M.E. Odem and J. Clay-Warner (Eds.), Confronting Rape and Sexual Assault, (pp. 35-49). Lanham, MD: Rowman and Littlefield.
 The term is believed to have originated in the mid-1970s, possibly in the eponymous documentary directed by Margaret Lazarus and Renner Wunderlich. (http://www.cambridgedocumentaryfilms.org/rapeculture.html)
 The common term for a person who has had a crime committed against them is “victim.” However, most people who have been raped prefer the term “survivor,” which connotes respect for their continuing agency after a traumatic experience. While the statutes and discussions thereof use the term “victim,” this project will replace it with the term “survivor” where possible.
 This work will not address the consequences of a rape conviction. The sentencing meted out by the criminal justice system for those who are convicted of rape and sexual assault is beyond the scope of this research, which is concerned primarily with the process of finding guilt or innocence in the matter.e
 Buchwald, Emilie, M. Roth, & P. Fletcher, Transforming a Rape Culture, 2nd ed. 2005.
 The vast majority of literature on rape begins with an acknowledgment that not all rapes occur with a male perpetrator and a female victim, but then the articles go on to explain that because most rapes occur that way, the author would be focusing on male-on-female rape and disregarding the rest. While many of the cultural power structures that perpetuate rape culture are gendered, perpetrators of all genders commit sex crimes against victims of all genders, and one in every ten rape victims is male; the language herein will reflect that to the extent feasible.
 McEwan, Melissa, “Rape Culture 101,” Shakesville, http://www.shakesville.com/2009/10/rape-culture-101.html Oct. 9, 2009.
 James McKinley Jr., “Vicious Assault Shakes Texas Town,” NY Times, Mar. 8, 2011 at http://www.nytimes.com/2011/03/09/us/09assault.html
 NY CLS Penal § 130.05 (2012)
 The FBI estimates that about 37% of rapes are reported to the police. (http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010)
 Paul Thompson, “Probe After Judge Pulls Out A Gun In Court And Tells Sex Attack Victim She’s ‘Killing Her Case,’” Daily Mail, Feb. 27, 2012, at http://www.dailymail.co.uk/news/article-2107264/You-shoot-lawyer-Judge-pulls-gun-alleged-sex-attack-victim-testifies-court.html
 Tim Gerber, Internal Affairs Investigates Claim of Police Brutality, KSAT, Feb. 28th, 2012, at http://www.ksat.com/news/Internal-Affairs-investigates-claims-of-police-brutality/-/478452/9146878/-/nj4wy0z/-/index.html
 Nicholas J. Little, From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative Consent Standard in Rape Law, 58 Vand. L Rev. 1321 (2005).
 Susan Estrich, Real Rape. Harvard University Press, 1988.
 Robin Warshaw, I Never Called it Rape: The Ms. Report on Recognizing, Fighting, and Surviving Date and Acquaintance Rape. Harper Perennial, 1994.
 Stepp, Laura S. A New Kind of Date Rape. Cosmopolitan, 10/12/2007.
 Little, supra.
 NYPL 130.05 defines “lack of consent” with regards to the crime of Rape in the 3rd Degree as circumstances in which “the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances.”
 Thomas M. Millar, “Affirmative Consent as a Legal Standard?” Yes Means Yes, https://yesmeansyesblog.wordpress.com/2010/03/19/affirmative-consent-as-legal-standard/ (Mar. 19, 2010).
 Consent is defined as the act of willingly and verbally agreeing to engage in specific sexual conduct. The following are clarifying points: Consent is required each and every time there is sexual activity. All parties must have a clear and accurate understanding of the sexual activity. The person(s) who initiate(s) the sexual activity is responsible for asking for consent. The person(s) who are asked are responsible for verbally responding. Each new level of sexual activity requires consent. Use of agreed upon forms of communication such as gestures or safe words is acceptable, but must be discussed and verbally agreed to by all parties before sexual activity occurs. Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dance floor is not consent for further sexual activity). At any and all times when consent is withdrawn or not verbally agreed to, the sexual activity must stop immediately. Silence is not consent. Body movements and non-verbal responses such as moans are not consent. A person cannot give consent while sleeping. All parties must have unimpaired judgment (examples that may cause impairment include but are not limited to alcohol, drugs, mental health conditions, physical health conditions). All parties must use safer sex practices. All parties must disclose personal risk factors and any known STIs. Individuals are responsible for maintaining awareness of their sexual health. These requirements for consent do not restrict with whom the sexual activity may occur, the type of sexual activity that occurs, the props/toys/tools that are used, the number of persons involved, the gender(s) or gender expressions of persons involved.
 Grenier, Richard. This Is Going Way Too Far: Sexual Consent Workshops at Antioch College, Insight on the News, Nov. 1, 1993, http://findarticles.com/p/articles/mi_m1571/is_n44_v9/ai_14677873/?tag=content;col1
 Fusilli, Nicole. New York State of Mind: Rape and Mens Rea, 76 St. John’s L. Rev. 3(5) (2002). Available at: http://scholarship.law.stjohns.edu/lawreview/vol76/iss3/5
 People v. Barnes, 42 Cal. 3d 284 (Cal. 1986)
 People v. Williams, 614 N.E.2d 730 (N.Y. 1993)
 Fusilli, supra.
 Donald Dripps, After Rape Law: Will The Turn to Consent Normalize The Prosecution of Sexual Assault? 958 Akron L.Rev. 41, 957 (2009).
 Dripps, supra.
 Teresa P. Scalzo, Prosecuting Alcohol-Facilitated Sexual Assault. Nat’l District Attorneys Association, Office of Violence Against Women Special Topics Series. (2007)
 Dripps, supra.
 Dripps, supra.
 Dripps, supra.
 See above.
 Phillip Rumney, False Allegations of Rape. 65 Cambridge L.J. 128-158 (2006)
 Dripps, supra.
 Lawrence v. Texas, 539 U.S. 558 (2003).
 Susan Brownmiller, Against Our Will: Men, Women, and Rape. Ballantine Books, 1993. (at 414)
 Rumney, supra.
 False Allegations, Recantations, and Unfounding in the Context of Sexual Assault, Oregon Attorney General’s Sexual Assault Task Force. http://oregonsatf.org/wp-content/uploads/2011/02/Position-Paper-False-Alleg3.pdf Jan. 10, 2008.
 False Allegations…, supra.
 Presentation to Colorado Organization for Victim Assistance by M. McNally, J. Bennett, and A. Munch, September 1999, ―estimates varied from 0% to 98%.‖
 Temkin, Jennifer, Rape and the Legal Process. Oxford University Press, 2002.
 347 U.S. 483 (1954)