Intoxication and the sources for defining “consent” under the ALI’s draft sexual assault provisions

I have previously applauded the drafters of the ALI’s draft sexual assault provisions for eschewing open-ended notions like “voluntariness” and “freely given consent” in assessing whether sexual activity is criminal. The latest version reaffirms that intention. Some curious aspects of the commentary of the most recent draft, however, raise questions about whether the definition of “consent” offered in Section 213.0(3) is truly exhaustive. Though there are other examples, the most significant involves how the draft treats intoxication.

The Model Penal Code already includes a provision on “consent.” Section 2.11 creates a general defense to criminal liability in many cases involving consent, depending on the nature of the harm to which consent was given. Throughout the various drafts of the new sexual assault recommendations, one might have assumed that the new “consent” provisions displaced the more general consent defense (which, incidentally, played only a small role in the MPC’s definition of sexual assault). In many respects, the early drafts were flatly inconsistent with the approach taken by the general MPC defense. For example, the MPC consent defense applies to “conduct and injury [that] are reasonably foreseeable hazards of joint participation in . . . concerted activity not forbidden by law”—an approach that would be in considerable tension with an affirmative consent provision, or even with the current, “contextual consent” approach that requires assessment of whether a person consents to “a specific act” of sexual penetration.

Moreover, the current draft language strongly implies that the definition in proposed Section 213.0(3) is exhaustive. It begins, “’Consent’ means . . . ,” language that normally implies an exhaustive definition to follow. The introductory language to Section 213.0 states that the definitions listed there apply “unless a different definition is plainly required,” again putting a thumb on the scale in favor of exclusivity. And finally, the draft throughout is written to facilitate incorporation by jurisdictions that might not have enacted the remainder of the Model Penal Code. For example, the draft consistently imposes liability on those who do acts “knowingly or recklessly,” even though the Code’s general construction principles would imply recklessness even without mens rea language, and even though the general construction principles would permit the more serious culpability state of knowledge to substitute even if only “recklessness” were specifically listed. It would seem odd, then, to expect the reader to consult the general consent defense in the Model Penal Code to understand the specifically defined provision in the proposed draft sexual assault provisions.

But in the latest draft, the Commentary for the first time implies that the general consent defense is relevant to assessing whether consent has been shown under proposed Section 213.0(3). The Commentary states, “Of course, all circumstances remain relevant, as specified in subsection (3)(c), in making the contextual assessment of whether the person’s behavior both communicates willingness and qualifies as legally effective consent.” A footnote appended to this text reads, “See Model Penal Code § 2.11(3) (1962) (specifying conditions in which assent does not constitute legally effective consent).”

Some of what appears in Section 2.11(3) seems merely to overlap conditions set forth in the new proposed “consent” definition. For example, the general consent defense does not apply when a person “is legally incompetent to authorize the conduct charged to constitute the offense” or “is given by a person whose improvident consent is sought to be prevented by the law defining the offense.” Nor is consent effective when “induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.” It is somewhat difficult to tell what these provisions would add to the proposed new “consent” definition, because the cross-references in the new provision have not been provided. But if all the drafters wish to do is ensure that sex violative of other provisions in draft Article 213 will also violate Section 213.2, then the most efficient way to communicate that fact to the states would be to expand the cross-references to those other provisions in the “consent” definition. The draft’s failure to do so is some evidence of an intention to broaden the scope of Article 213 by permitting some room to argue that “consent” can be invalid for reasons beyond the partner’s lack of behavior communicating willingness or the actor’s conduct that would violate one of the many other provisions of the article.

While the effect of the cross-reference to Section 2.11(3) is in some respects unclear, the cross-reference does clearly imply expanded liability in the troubling context of the seriously intoxicated partner. Section 2.11(3)(b) declares consent invalid if “given by a person who by reason of . . . intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense.” Whether this is a good standard in this setting or not, it is clearly different from the many different standards the drafters have experimented with in search of a solution in this troubling area. (The most recent effort would criminalize sex with a person “passing in and out of consciousness or . . . in a state of mental torpor as a result of intoxication.”)

In the context of intoxication, Illustration 7 adds to the confusion. It reads:

Accused and Complainant meet each other for the first time at a party. Over several hours, they flirt while drinking heavily. Well after midnight, Complainant steps away from Accused and nearly falls to the floor from inebriation. Accused helps Complainant lie down in a back room. Complainant babbles incoherently, and he throws up, but does not lose consciousness. Accused removes Complainant’s boxer shorts and engages in an act of penetration. Even though there is no evidence that Complainant physically or verbally resisted or that Complainant was legally incapacitated, Accused may be found guilty under Section 213.2. The lack of any prior sexually intimate relationship between the parties; Complainant’s heavy drinking and resulting nausea, vomiting, and impaired condition; and the sudden act of penetration not preceded by reciprocated acts of sexual intimacy, together could support finding that Complainant had not consented and that Accused knew, or recklessly disregarded the risk, that Complainant had not consented.

Why might this situation result in a finding that Complainant had not consented? Since the Illustration states that Complainant did not lose consciousness and was not legally incapacitated, this is not simply a case in which consent is absent because the conduct violated some other provision of the Article. It is certainly possible on this set of facts that the Complainant did not know he might be penetrated, which would certainly preclude a finding of Complainant’s willingness. But the Illustration does not explain the result in those terms (or indeed in any terms), leaving uncertainty as to what role intoxication plays in the assessment of consent.

KC