The question of what constitutes “consent” to sex has been in near constant flux for the past decade, employing various meaningless characterizations doomed to fail. For the most part, these battles have been waged on college campuses and civil courtrooms, with criminal law remaining modestly above the fray. A gang of woke academics tried to change the definition in the Model Penal Code to “affirmative consent,” but were beaten back by lawyers who grasped their definition was untenable and backwards.
NYS Assemblywoman Rebecca Seawright has proposed a bill to redefine consent. Penal Law §130.5 now provides that the prosecution must prove lack of consent as an element of the crime. Beyond force and incapacity to consent, the definition requires that the “victim” communicate lack of consent.
…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.
This has the clarity of “no means no.” Seawright proposes to substantially change the underpinning of consent to address the issue of consent obtained by false representations. What if a party to sex lies to the other party? Is it really consent if its given based on fraudulent inducement? Seawright proposed to add a definition of “consent” as subdivision 22 to Penal Law §10, the definition section for the penal law.
22. “Consent” means freely given knowledgeable and informed agreement; such agreement must be obtained without the use of malice such as forcible compulsion, duress, coercion, deception, fraud, concealment or artifice.
The law has long required that consent be voluntary and knowledgeable, without which it wouldn’t be consent. But that means that one knows what one is agreeing to. If someone knows it’s sex, that’s sufficient to show that sex was “knowing.” It doesn’t mean one knows the history of one’s sex partner or the secrets of their soul, just the nature of the act they’re about to perform.
The inclusion of the phrase “without use of malice” is bizarre and inexplicable. What difference does it make if a person is malicious or just horny, or lonely, or motivated by other purposes than malice? Why this phrase is included is unclear, but if it should remain and the definition is enacted, it will be nearly impossible to prove anyone had “malice,” as opposed to a desire for sex, in their heart.
But the deeper problem with this proposal is the final four words: deception, fraud, concealment or artifice.
I’ve often explained that writing law is hard, particularly when one has an evil in mind and sets about putting words to screen that will eradicate that evil. But in law, words are approached with how they will apply in the real world, not just the myopic world of the writer who is focused on what words are needed to fix her problem. We then take the words to the logical extreme to see whether they will wreak havoc by having terrible or absurd unintended consequences.
On the most shallow level, who would argue that consent obtained by deception, fraud, concealment or artifice should be valid? But then it comes to distinguishing romance from rape, these words are fraught with problems. If a guy puffs his occupation and income, it’s deception. If a woman wears spanx and false eyelashes, it’s deception. If a guy claims to be single when he’s married but separated, it’s deception. If a woman had breast augmentation surgery, or reduction surgery for that matter, it’s deception. And, of course, there’s the classic, “will you love me forever?”
Which artifice gives rise to criminal prosecution for rape? The universe of lies, large and small, we tell in the course of obtaining consent to sex has few limits, and both men and women engage in artifice to get what they desire. Is this just the normal game of romance, putting on one’s best look to attract someone with whom you want to have sex, or is this rape?
Often, the question of whether consent to sex, freely and voluntarily given in the heat of passion, knowing full well that the acts about to be performed are sexual and yet done with enthusiasm, is revisited afterward. Did the person you thought would be there for you later decide they’re not that into you? Were you embarrassed by your decision in the morning light? Did you just change your mind?
If so inclined, one need only parse the courting ritual for a claim that’s sufficiently wiggly to constitute deception and, boom, rape. Of course, a party could make it up as well, but post hoc dishonesty is always a possibility and problem.
Tarale Wulff, a New York actor and model, said in a statement that Weinstein had repeatedly “claimed to be confused, and that he thought most men are confused” about the “true definition of consent.”
“There’s a generation of woke individuals who won’t be silenced,” Wulff added. “By clearly defining consent, there will be no confusion.”
Cases like Weinstein’s often tend to drive changes like this to “fix” the problems that arise from their specific instances of conduct. But what might appear to be “clearly defining consent” under a particular set of circumstances will create massive confusion, to the point of meaninglessness, under others.
Writing law is hard, but while it’s understandable that Seawright seeks to hold men accountable for sex induced by fraud, vitiating consent for any deception, fraud, concealment or artifice would likely turn many, perhaps even most, sex partners of all genders into rapists. Is that what she’s trying to accomplish?