Mens Rea and the ALI's Sexual Assault Draft

I previously argued that the ALI draft on sexual assault makes its intended point about the perils of coy sex while making an unintended point about the perils of coy legislation. In my view, the draft convincingly advocates for a “no-means-no” rule, even though adopting such a rule might frustrate some people who prefer to offer feigned resistance to sex. But the draft is itself coy when it comes to its approach to mens rea.

That is because “consent,” in all the forms it has taken in the drafting process, embraces both historical facts and the interpretative/normative question of whether those facts satisfy the legal standard of “consent.” Clearly, the drafts exculpate actors who nonculpably believe their partners said “go” when in fact they said “no.” But the most likely interpretation of the draft is that the actor’s mistake about whether historical facts satisfy the “consent” standard—i.e., whether they constitute “behavior . . . that communicates . . . willingness”—involves a legal question about which the actor’s mental state is irrelevant. These interpretative/normative questions are likely to be the most important source of mistakes in sexual encounters. Accordingly, solicitude about the actor’s view of historical facts will be only partial protection for actors who are not consciously aware that they have misunderstood their partners’ wishes. A fuller explication of these ideas can be found here, here, and here.

Last week, however, a member of the advisory group to the ALI project, in response to one of my blog posts, appeared to disagree with my reading of the draft. She stated that the standard under the draft is “don’t have sex with a person if you are aware of a substantial risk they don’t want sex.” And she continued, “The actus reus element requires evidence that the complainant did not engage in behavior demonstrating willingness, and the mens rea element requires the state to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that there was this lack of willingness.”

I will not repeat the extensive arguments I’ve previously set forth about why this defendant-friendly interpretation of the statutory text is less likely than the alternative. Instead, allow me to offer some suggestions on how the draft might be revised, if the defendant-friendly interpretation is actually the one the drafters—or the ALI—prefers.

The easy start is to address the many instances in the commentary in which the drafters proclaim the importance of the mens rea requirement but in a form that blunts its impact. For example, the draft states, “This new offense requires proof beyond a reasonable doubt of the defendant’s knowledge or reckless awareness of the risk that consent, as contextually defined in Section 213.0(3), was absent under the totality of the circumstances”; “The prosecution has the burden throughout the case, including the burden to prove, beyond a reasonable doubt, the lack of consent and the defendant’s culpable awareness that the victim did not consent”; “Proving the accused’s mens rea requires proof that the accused knew, or was aware of and yet consciously disregarded, a substantial risk that the other party had not consented”; “That issue is addressed in the commentary to Section 213.0(4), which at a minimum requires proof of reckless disregard for the other party’s lack of consent”; “Contextual consent allows the factfinder to determine that there was no consent and that the actor knew it or recklessly disregarded that risk, rather than requiring the factfinder to put the burden on the other party to immediately resist or object in order to avoid forfeiting the claim of violation”; “If intoxication makes the actor unaware of a substantial risk that the other person did not consent, the mens rea element of Section 213.2 is not satisfied, and the actor would not be liable.”

In any of these examples, if references to “consent” were replaced or supplemented with references to “willingness,” the commentary would support the idea that the defendant’s culpability must be shown not only as to historical facts, but also as to the fact that makes an actor’s conduct culpable—that the partner was not willing to engage in the sex act in question. Indeed, the April 2015 draft, which applied the “affirmative consent” idea to sex acts short of penetration, included one comment that supported the defendant-friendly result: “If the actor honestly and sincerely believes the date went well and a sexual overture is welcomed, there should not be liability even if the other person in fact found the date insufferable, and yet continued to be politely accommodating. The Code requires that the actor be at least recklessly aware of the absence of consent—in other words, aware of a risk that the other person does not in fact welcome the behavior.” This comment was inconsistent with other aspects of the statutory text and commentary; regardless, it hit the cutting room floor when the drafters changed their standard for nonpenetrative sex acts. Nevertheless, the comment is an example of how the drafters could clarify that the defendant-friendly interpretation of the draft is the intended one.

Recasting the draft in this way would not necessarily make the consent standard purely subjective. If all the draft seeks is to require that the actor’s beliefs about the partner’s willingness be based on the partner’s objective behavior, that requirement could be retained. I have previously argued that such a requirement wouldn’t affect many cases. Juries simply asked whether the defendant was reckless regarding willingness will readily conclude that the answer is “yes” when the partner has engaged in no behavior that might be interpreted to demonstrate willingness; a gross negligence standard would capture the rare sociopath or liar who could convince a jury that he did not appreciate a substantial risk that a purely passive “partner” was unwilling to engage in the sex act in question.

If the drafters do intend the defendant-friendly interpretation, it would be preferable to signal that interpretation in statutory text, rather than relying solely on signals in commentary. The following underscored addition to Section 213.2 might do the trick:
An actor is guilty of Sexual Penetration Without Consent if he or she engages in an act of sexual penetration and knows, or consciously disregards a substantial risk, that the other person has not given consent to that act. Unless the other person has revoked consent or verbally refused consent as defined in Section 213.0(3)(d), conviction is permissible only if the actor knew, or consciously disregarded a substantial risk, that the other person was unwilling to engage in the act of sexual penetration, provided that the actor’s belief in the other person’s willingness is based on the other’s person’s behavior.

Perhaps this point could be made in a less cumbersome manner. Regardless, the revision helps explain why the drafting committee might not be of a single mind regarding whether the defendant-friendly interpretation is the right one. Suppose an actor claims to have believed that the partner was willing to engage in sexual penetration solely because the partner accompanied the actor to the actor’s apartment. Some will think this story is unlikely to be credited by a jury, even under a purely subjective standard, and will note that the problem will rarely arise anyway given that most cases will involve verbal protests that make the case easy for other reasons under the draft. But those who think it is important to specify that a defendant’s conclusion must be based on an act will likely not be satisfied to leave to the defendant the decision of the number and nature of acts that justify a belief in willingness.

The ALI might believe, as it did in approving the Restatements of Torts, that an objective manifestation of consent need not be independently required. That position is in some ways easier to support in the criminal law, in which we convict actors for trying to inflict social harm even if they couldn’t have done so. If the ALI took that position, sexual autonomy could be protected by forbidding penetration “unless an actor believes that the other person is willing to engage in the act of penetration, provided that the actor may not be aware of a substantial risk that the other person is not willing.” Alternatively, the ALI could impose liability “unless an actor believes that the other person is willing to engage in the act of penetration, so long as the actor’s belief does not involve a gross deviation from the standard of care that a reasonable person would observe.” Either approach would be more consistent with the Model Penal Code’s usual approach to criminal liability, and either approach could be coupled with a free-standing prohibition on penetration after the partner’s verbal refusal, moving the law forward while recognizing that not every harm, however real, justifies the further harm of criminal punishment.

KC