Rape is one of the most serious crimes a person can commit. It carries substantial consequences and taints a person for the rest of their life. This is how it should be based upon our shared conception of rape. This is why the effort to transition the crime of rape from clear line to vague morass of affirmative consent has failed at the American Law Institute in efforts to “reinvent” rape up to now. But academics have not yet given up.
A major effort to update the model criminal code on rape may actually undermine new understandings of consent advanced by the #MeToo movement.
Silence or a lack of resistance, as we have now learned, does not signal consent. Yet the proposed code — a blueprint for states in updating their own laws — suggests that a person’s inaction may in fact be interpreted by another as permission to engage in sex. This would turn back the clock on cultural and legal progress toward understanding consent as freely given agreement.
The blithe “as we have now learned” does a lot of work in the distortion of issue. So it’s been claimed. So it’s been pushed by those who want it both ways, to have their silence and acquiescence serve as their approval to the conduct in which they are willingly engaging, but to be able to change their mind later by saying, “but I never said so.” This isn’t to say that all, or even most, women would do this, or want to do this, but that some would, and that would be enough to establish the crime rape if the academics had their way.
If saying so became the clear rule, it would require a wholesale reworking of sex which is doable only in the most fevered fantasy of unduly passionate, with a constant stream of consent questions and answers that no one has, would, or will, ever do. And even if they did, there would be no way to prove it, reducing it to the same she said/he said that makes the claim so problematic today.
We are members of the institute. A central point of contention in the deliberations over the new model code has been the meaning of sexual consent. With the profusion of highly public sexual assault cases in the last few years, you might think that the new model code would offer a state-of-the-art consent definition.
Not so. We fear that the institute will adopt a retrograde definition that may set back hard-fought advances and stall needed progress.
To the extent they make any effort to muster an argument in support of their cause, it’s essence is that their “definition” is new, hip and modern, and any other definition is old, tired and “retrograde.” This ignores one of the most fundamental aspects of what makes for a viable, constitutional, element of a crime. Notice. How does a person know whether he’s about to commit the crime of rape or engage in mutually consensual sex?
Over the past 50 years of sweeping cultural change, there has been a shift away from force and resistance toward consent as the proper dividing line between lawful and unlawful sex. This change transformed the meaning of rape. The feminist slogan “no means no” became widely accepted and written into law. Young people came of age seeing themselves as more egalitarian in their sexual relationships and appreciative of how communication enhances sexual intimacy.
The “no means no” slogan was exceptionally well-suited to its task. If someone said “no,” that would be a clear sign that persisting beyond that point was criminal. While some argued that it ignored the fact that some women preferred to play “hard to get” and wanted to be persuaded, tough nuggies. If she says “no,” it’s no. There was a bright line and anyone who crossed it knew what he was doing.
But “no means no” fell out of fashion when the litany of rationalizations for why placed too much of a burden on women.
In the last few years, #MeToo has identified the marked power imbalances in many sexual assaults. The cases against Harvey Weinstein, Bill Cosby and others made clear that the law must not understand silence as consent.
Power differentials are not the only reason some victims are passive. Childhood sexual trauma may teach victims to remain still during abuse, a coping mechanism that can be activated almost automatically when a threat looms.
Victims may also freeze reflexively. Neurobiologists are now able to identify the brain circuitry responsible for immobilizing people when they face threats, whether during a school shooting, natural disaster or sexual assault. A legal burden to physically or verbally resist sexual assault ignores this mounting evidence.
The dubious applicability and extent of these claims, not to mention the infantilizing of women who are too fragile and helpless to give any indication of “no” notwithstanding, these claims do nothing to cure the problem of notice so that a person will know where the line is, and make the choice to cross it or not, be a rapist or not. Rape is a big deal, so knowing when one’s conduct becomes rape is similarly a big deal. Excuses don’t change the failure of notice.
The U.S. Department of Justice has objected to the institute’s proposed definition of consent, writing that it “would effectively place the onus on the victim to manifest physical or verbal nonconsent, rather than on the actor to secure the victim’s consent, creating the risk that fact-finders will erroneously conclude that a victim who was frozen by fear was communicating consent.” Any definition that allows inaction to imply consent imposes a new resistance requirement — one that maintains a longstanding scrutiny of the victim rather than the offender.
It’s common that sophists elide the nature of the crime of rape with other non-comparable crimes to claim that it’s the only crime where the burden is on the victim rather than “the offender.” But that’s the nature of sex, either a wonderful mutual experience or the heinous crime of rape. Any definition which fails to distinguish which is which would be a disaster, even if it’s new and shiny.