From Presumed Consent to Presumed Non-Consent: Evolving Definitions of Rape
Stop Abusive and Violent Environments
Rape is defined as having sexual intercourse without the partner’s consent. So how does one demonstrate consent — or lack of consent – to a potential sexual partner, and potentially in a court of law?
If a woman (or man) states “No,” the person’s wishes certainly should be respected. But seldom does a person boldly announce, “I’ve now made the decision that I want to have sexual intercourse with you.” In most cases, a couple’s decision to engage in sexual intimacy tacitly emerges from a romantic interplay that transpires over a period of hours, days, or months.
Based in part on a previous legal analysis (1), the following discussion documents how the conceptualization and underlying assumptions of consent have changed over the years, moving from Presumed Consent to Affirmative Consent, and more recently to Presumed Non-Consent. This discussion applies to consent between two adults, not to relations between an adult and a sexually mature minor.
The four models of Presumed Consent rest on the assumption that consent can be inferred from one’s marital status or actions:
Traditionally, the marriage contract was deemed to encompass an agreement for sexual relations. Since the woman had entered into the marriage by her free will, sexual activities in the marital context were presumed to be consensual. (2)
Utmost or Reasonable Resistance
In order for an alleged victim to prove she didn’t give consent, the woman had to demonstrate that she resisted to the utmost, or at least evidenced some level of physical resistance. As the Oregon Supreme Court opined in 1951, “The woman must resist by more than mere words. Her resistance must be reasonably proportionate to her strength and her opportunities.” (3)
Prior Sexual Relations
A woman who had previously engaged in pre- or extra-marital sex was believed to be more likely to give her consent to future sexual liaisons. In California, for example, jurors were instructed, “A woman of unchaste character can be the victim of a forcible rape, but it may be inferred that a women who has previously consented to sexual intercourse would be more likely to consent again.” (4)
Some have asserted that a woman’s manner of dress or other seductive behavior can serve as an indicator of consent. In Wood v. Alaska, the case revolved around the fact that the alleged victim told the man that she had posed for Penthouse magazine and had participated in pornographic films. Under the state’s rape shield laws, however, the defendant was barred from introducing these facts as evidence and the man was later convicted for sexual assault. (5)
The three models of Affirmative Consent posit that the parties cannot merely acquiesce to the sex act; rather they must take affirmative steps to convey their consent.
M.T.S., a 17 year old boy, and C.G., a 15 year old girl, were living together. On the fifth day of their co-habitation, C.G. consented to engage in kissing and heavy petting. This led to sexual penetration without any threat of force by M.T.S., or any statement or action by C.G. to indicate she did not want to have intercourse. In a 1992 landmark ruling by the New Jersey Supreme Court, the actions of M.T.S. were deemed to constitute rape because C.G. did not give her affirmative permission. The Court also ruled that “Persons need not, of course, expressly announce their consent to engage in intercourse for there to be affirmative permission,” so the exact meaning of the new doctrine was left to future courts to resolve. (6)
Explicit, Graduated Consent
Antioch College of Ohio implemented its Sexual Offense Prevention Policy in 1992 requiring persons to “express their clear verbal consent” before moving to a new level of sexual intimacy. The policy specified the verbal consent must be given “each and every time there is sexual activity.” Presumably if a married couple had intercourse every night, the two would be required to give a graduated series of verbal consents each time they had sex. The policy clarifies that “body movements and non-verbal responses such as moans are not consent.” (7)
As explicated by Jaclyn Friedman, “Enthusiastic consent is a principle that says that ‘no means no’ is crucial – if a sexual partner says no, you have to stop – but it’s not enough. In order to ensure consent and prevent sexual violence, everyone, regardless of gender, has to make sure that their partner is enthusiastic about what’s going on….Enthusiastic consent is an ongoing state, not a yes/no lightswitch. It requires sexual partners to be in ongoing communication with each other.” (8)
The two models of Presumed Non-Consent assume that under certain conditions, consent cannot be rendered, regardless of the woman’s statements.
The U.S. Department of Education has released a sexual assault policy that defines sexual violence as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol” [emphasis added]. The policy does not explain what consumption or blood alcohol levels would render a person unable to give consent, so presumably any type of alcohol consumption could negate a person’s capacity to consent. (9)
Feminist theoretician Catherine MacKinnon has stated that normal sexual intercourse is virtually indistinguishable from rape: “Men who are in prison for rape… were put in jail for something very little different from what most men do most of the time and call it sex.” (10)
One law review concluded, “That a woman does not realize she has been raped does not, of course, mean that the rape has not occurred.” (11) A report by Ms. Magazine likewise made this questionable claim, “the moral lessons taught by society make it difficult for many women to understand when they have been the victim of rape.” (12)
QUESTIONS TO BE RESOLVED
The notion of giving one’s consent to engage in sexual relations has evolved dramatically over the years. With the exception of the Explicit, Graduated Consent and the Enthusiastic Consent models, all the conceptualizations imply that only the woman must give consent, presumably because the male is assumed to be the initiator of the liaison. That belief is challenged by the numerous sex cases reported in recent years involving female school teachers and their male students. (13)
So the debates that once swirled around the question, “Does ‘no’ really mean ‘no’?” have been definitively resolved in favor of safeguarding female autonomy. Now the debate has evolved to more vexing questions such as:
• Must both parties give permission in order to conclude the sex act is truly consensual?
• Given the vagueness of the Affirmative Permission model, does this standard place an unreasonable burden on the male?
• Is the trend to more structured forms of consent undermining the spontaneity, love, and mutual respect that is the foundation of sexual intimacy?
• Does formalizing the consent process provide a legal foothold for government intrusion into private matters?
• In the event of an accusation of rape, do the Presumed Non-Consent models shift the burden of proof to the male partner, thus removing the presumption of innocence?
• Do the Presumed Non-Consent models in fact serve to negate female autonomy?
1. Richard Klein: An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fairness. 41 Akron Law Review 981 (2008)
2. Sir Matthew Hale. The History of the Pleas of the Crown 635 (London Professional Books, 1971)
3. State v. Risen, 235 P.2nd 764 (Or. 1951)
4. Harriet Galvin. Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade. 70 Minnesota Law Review 763 (1986)
5. Wood v. Alaska 957 F.2d 1544 (9th Cir. 1992)
6. M.T.S., 609 A.2d at 1267
7. Antioch College Sexual Offense Prevention Policy. Yellow Springs: Antioch College. Revised 2006.
8. Jaclyn Friedman and Jessica Valenti (Eds.): Yes Means Yes: Visions of Female Sexual Power and a World Without Rape. (Seal 2008)
9.Department of Education Office for Civil Rights. Dear Colleague Letter. April 4, 2011.
10. Found at http://www.brainyquote.com/quotes/quotes/c/catharinem220350.html
11. Nicholas Little. From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative Consent Standard in Rape Law. 58 Vanderbilt Law Review 1321 (2005)
12. Robin Warshaw. I Never Called it Rape: The Ms. Report on Recognizing, Fighting, and Surviving Date and Acquaintance Rape 63-64 (1988).
13. World Net Daily. Notorious Teacher Sex Scandals. Accessed August 16, 2012. http://www.cbsnews.com/2300-504083_162-10004533.html?tag=mncol;lst;1