Tuesday, May 10, 2016
Notwithstanding the risks of injustice posed by a no-means-no rule in sexual assault law, I have commended the ALI sexual assault drafts for adopting the position. True, some nonculpable actors may be punished under the rule even though they don’t know about it. And as with many rules, defining the boundaries will pose difficulties. But the alternative is unattractive. A nontrivial number of persons whose “no’s” are ignored will accede to sex out of fear, or out of a belief that continued resistance will simply be overcome by a more physically powerful partner. These reactions may not be known by the person ignoring the “no’s,” and if they are suspected, proving the defendant’s suspicions beyond a reasonable doubt may be difficult. Accordingly, it seems worth the effort to educate the public that the law will require “no” to be taken as an answer. We can’t expect the public to learn too many proxy rules—usually we should simply criminalize conscious risking of widely recognized social harms. But this particular rule is important enough to be high on the list.
But the ALI’s draft no-means-no rule has changed radically. The definition of “consent” now makes a verbal refusal irrevocable if it occurs before the partner indicates a willingness to be penetrated—probably the typical case:
A clear verbal refusal—such as “No,” “Stop,” or “Don’t”—suffices to establish the lack of consent. A clear verbal refusal also suffices to withdraw previously communicated willingness in the absence of subsequent behavior that communicates willingness before the sexual act occurs.
The definition in the draft considered at the ALI’s 2015 annual meeting placed no such limit on revoking a “no.” It imposed liability if the partner
has expressed by words or conduct his or her refusal to consent to the act of sexual penetration; a verbally expressed refusal establishes such refusal in the absence of subsequent words or actions indicating positive agreement.
Why the change? One possibility is that the drafters have simply been overwhelmed by the sheer number of changes made to the draft over the past several months, missing some points of detail along the way. Alternatively, a cynic might suggest that the changes are designed to sap the energies of critics, to encourage their energies to be spent on peripheral amendments while leaving the core of the draft untouched.
Consider a third possibility. The drafters have limited their ability to make the no-means-no rule special by too quickly suggesting that passivity is simply a form of action. In the days when the draft openly embraced the requirement of “affirmative consent,” it was simpler to explain how the “no” rule operated. After a “no,” an actor would need to point to affirmative conduct by the partner to undo the “no.” But if a failure to resist is equated with action, this approach is no longer available.
From the beginning, I have argued, the ALI drafts should have been interpreted to recognize the relevance to consent of the failure to resist an obviously impending sex act. But it is defensible to have a different approach to the “no” rule. Assessing a person’s willingness to have sex always requires specifying which choices the person should not be required to make. A person threatened with a knife is willing to have sex rather than being stabbed; we simply define the choice as one to which the person should not be put. A “no” rule that can only be undone by subsequent action essentially means that a person is not deemed willing to have sex if the alternative is to continue protesting, or to offer physical resistance, or the like. Passivity after the “no,” then, becomes a protected choice.
Generally, the draft has been improved as it has recognized more explicitly that passivity is relevant to determining willingness. But to the extent that it has abjured any action/inaction distinction, it has limited its ability to articulate a special “no” rule. The draft defines “behavior” to include “both action and inaction.” So if “behavior” can undo a “no,” passivity after the “no” is no longer protected.
In other words, those who object to a general “affirmative consent” standard could quite well take a different approach to a requirement of “affirmative consent” after a “no.” To reject such an approach makes the “no” just another factor in assessing consent, unless one does as the current draft does, and sharply limits the situations in which a “no” can be revoked.
Interestingly, the drafts started down this path when they first attempted to deflect criticism of their general affirmative-consent approach. The April 2015 draft required that consent be based on “words or actions.” Preliminary Draft No. 5 shifted to requiring that consent be demonstrated by “conduct, words, or both” and included commentary emphasizing that “’conduct’ . . . is not restricted to active bodily movement” (though it retained a requirement of “words or actions” to undo a “no”). In the rebranding of the project as a “contextual consent” approach, the separate vocabulary of “action” disappears. In the limited setting of the “no” rule, it should reappear, and the sharp limits on the ability to undo a “no” should vanish.