Posted: 13 Feb 2017
Date Written: February 11, 2017
Traditional rape law viewed the offense in Manichean terms: either an act of unwanted sex constitutes “rape” – one of the most serious affronts a person can endure – or else it is not legally cognizable at all. The traditional threshold for the offense also centered on evidence of the victim’s unwillingness, requiring either physical force or physical resistance. As “no means no” reforms took sporadic hold within contemporary law, they broadened the definition of rape to include unwanted penetration in the face of verbal refusal, thereby retaining both the unwillingness threshold as well as adopting the severe punishments for the offense provided in traditional law.
Now, an incipient wave of reforms, colloquially known as “yes means yes,” aims to reorient sex offenses around willingness in place of unwillingness or resistance. But fundamental disagreements over this conception of consent have led to a stalemate in implementation of such a standard, even in states that have nominally embraced such language. Both skeptics and proponents express doubt about the existence of the targeted conduct – skeptics think it better labeled “regrettable sex” while proponents think it masks more culpable behavior. Both sides question the harm – skeptics tend to dismiss any conceivable injury as minimal, whereas proponents think the harm equivalent to if not greater than the harm in cases of force or unwillingness. And both sides have grave reservations about the capacity of the legal system to adjudicate these kinds of complaints accurately. Skeptics fear prosecutorial over-reaching, the problem of false accusations and murky proof, coercive plea deals, and prosecutions tainted by racial or other biases that selectively target disfavored groups as offenders. Proponents worry about the systematic downgrading of serious offenses by prosecutors biased by preconceptions about the virtue of certain victims. Some skeptics further question the efficacy of legal solutions to a socio-cultural problem. In sum, for moral and institutional reasons, skeptics reject any form of expanded liability for “yes means yes” type crimes, whereas proponents embrace liability, but at a level of seriousness akin to forcible or nonconsensual rape.
This article aims to break the stalemate by responding to both sets of concerns. It argues in favor of a willingness standard for consent, coupled with tiers of liability that include a low-level misdemeanor offense. It promotes this approach as normatively desirable, not simply as a compromise between two opposing positions. In so doing, it explains both normatively and pragmatically why an actor who engages in an act of sexual penetration, aware of a substantial risk that the other person has not indicated willingness to engage in that act, merits criminal punishment, as well as why that punishment should not be more serious.
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