NCJ Number
149774
Journal
University of Pennsylvania Law Review Volume: 141 Issue: 3 Dated: (January 1993) Pages: 1103-1151
Date Published
1993
Length
49 pages
Annotation
This article proposes a rape law based on a norm of "affirmative verbal consent."
Abstract
Under this standard, "no" would mean "no," "yes" would mean "yes," and the lack of any verbal communication as to consent would be presumed to mean "no." In more specific terms, a "no" or its verbal equivalent would be dispositive of the issue of consent, as would a freely given "yes" or its verbal equivalent. The lack of a "yes" or its verbal equivalent would raise a presumption of nonconsent. Such a standard would criminalize even "nonaggravated sexual assault, i.e., nonconsensual sex that does not involve physical injury, or the explicit threat of physical injury." Rather than mirroring America's sexually coercive society, such a law declares that a woman's right to sexual autonomy is absolute. Part I of the article discusses how the current prima facie elements of and defenses to rape must be altered to realize a new standard based on affirmative verbal consent. It also suggests the implementation of such changes through both the adoption of new statutory language and the reinterpretation of existing statutes. An analysis of mens rea and culpability shows that the punishment of those who violate a rape law predicated on affirmative verbal consent can be justified according to commonly accepted notions of criminal culpability. Part II examines the ramifications of a rape standard characterized by the changes suggested in Part I. It also argues that a clear and effective consent standard and its accompanying protection of sexual autonomy need not be achieved at a cost to intimacy in sexual relations. 174 footnotes