Consent, Culpability, and the Law of Rape

Abstract

Our conception of sexual assault is undergoing a transformation.The most critical shift is the move away from force as a necessary element of rape and toward the view that sex without consent is itself a serious crime.As Deborah Tuerkheimer notes, the prevalent view is that "it is virtually axiomatic that nonconsensual sex is rape; the challenge outstanding is to define consent." 1 Although only some states currently adopt a requirement of affirmative consent 2that the consenter must say "yes" by words or conduct-it is reasonable to predict future adoptions for two reasons.First, as colleges and universities are required under Title IX to promulgate sexual assault regulations, these institutions seem particularly tempted by affirmative consent standards. 3Indeed, over 800 colleges and universities have adopted affirmative consent provisions. 4 Second, affirmative consent standards are advocated for not just by ivory tower scholars.These standards are also under consideration as part of the revised Model Penal Code.The Model Penal Code, arguably one of the most influential and successful law reform efforts, has one significant blemish: its sexual assault provisions-provisions which include a marital rape exemption and adopt a gendered view of rape.