29 Pages Posted: 2 Jan 2016 Last revised: 19 Feb 2017
Date Written: December 31, 2015
Defining sexual consent to require an affirmative expression of willingness on the part of each participant has become commonplace on college campuses. In contrast, whether the criminal law should move in this same direction remains a subject of great controversy. Opposition to affirmative consent centers on the possibility of miscommunication and a related concern that unjust prosecutions will result if affirmative consent definitions are codified. What has gone largely unremarked is that affirmative consent definitions are not without criminal law precedent. A small number of states have required affirmative consent for decades, thus enabling a way to assess the functioning of this standard. By evaluating the case law in these affirmative consent jurisdictions, I identify three recurring fact patterns: sleep, intoxication, and fear. In none of these categories does the possibility of a mistake regarding consent tend to surface as an issue. While this analysis does not resolve the normative issues raised by affirmative consent, it begins to fill a descriptive void that has hindered the conversation surrounding criminal law reform.
Keywords: rape, sexual assault, affirmative consent
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