Equality is not Enough: The Importance of the Due Process Clause in Redefining Consent to a Sexual Encounter

• Author: Carley R. Kranstuber
• Position: J.D., magna cum laude, May 2017, Capital University Law School; B.A. with Honors in Political Science, June 2010, The Ohio State University. Thanks to my parents for their unconditional love and support, my dear friend Kitty Ivan for reminding me to take a break from studying and eat dinner, and Professor Scott Anderson for his expertise,...
• Pages: 765-794

EQUALITY IS NOT ENOUGH: THE IMPORTANCE OF THE

DUE PROCESS CLAUSE IN REDEFINING CONSENT TO A

SEXUAL ENCOUNTER

CARLEY R. KRANSTUBER*

I.!INTRODUCTION

Consent is a pervasive concept, one that exists in ordinary language,

morality, and law. For centuries, courts, legislatures, and legal minds have

grappled with how consent should be understood in a legal context and

where ambiguities lie in its interpretation.1 Unfortunately, the law does not

provide a single definition of consent that can be applied in all

circumstances. Consent can be interpreted differently and used for a

variety of purposes depending on the context of the situation.2 Consent can

range from a choice made only after “full, free, and informed thought” to a

mere lack of dissent.3 It has applications in almost every area of law.

Specifically, in the realm of criminal law, rape and sexual assault laws

provide a proverbial breeding ground for conceptual and normative

disputes about how a party consents to a sexual interaction, and w hether

that consent exists in a given set of circumstances.4

The Rape, Abuse, and Incest National Network (RAINN)5 published

an article to assist potential victims in determining w hether they had given

consent to a sexual encounter.6 The article is simply entitled, “Was I

Raped?”7 This is an outwardly strange question th at a woman might ask

Copyright © 2017, Carley R. Kranstuber.

* J.D., magna cum laude, May 2017 , Capital University Law School; B.A. with Honors

in Political Science, June 2010, The Ohio State University. Thanks to my parents for their

unconditional love and support, my dear friend Kitty Ivan for reminding me to take a break

from studying and eat dinner, and Professor Scott Anderson for his expertise, guidance, and

conversation on this fascinating and controversial topic.

1 Legal Role of Consent, RAPE, ABUSE, & INCEST NAT’L NETWORK, https://rainn.org/get-

information/types-of-sexual-assault/was-it-rape [https://perma.cc/5AFX-HFMG] (formerly

entitled, Was I Raped?).

2 Id.

3 Zamet v. Hyman, [1961] 1 WLR 1442, 1444 (Lord Evershed).

4 Legal Role of Consent, supra note 1.

5 RAINN is an anti-sexual violence organization that works to educate the public about

sexual assault, improve services to victims, and bring rapists to justice. See RAPE, ABUSE,

& INCEST NAT’L NETWORK, htt ps://www.rainn.org [https://perma.cc/L768-D2VS], for more

information.

6 Legal Role of Consent, supra note 1.

7 Id.

766 CAPITAL UNIVERSITY LAW REVIEW [45:765

herself after participating in a sexual encounter,8 for it seems fairly obvious

that she would know if she had just engaged in an activity that was not by

her own accord and choice. RAINN poses questions to guide the reade r in

her consideration of whether she had been raped : “I didn’t resist

physically—does that mean it isn’t rape?” “I used to date the person that

assaulted me. Does that mean it isn’t rape?” “I thought ‘no,’ but didn’t

say it. Is it still rape?”9 The article did an excellent, albeit accidental, job

of highlighting our current problem with rape law: that although a party

may legally consent to have sexual intercourse, by no means does this

reflect an active, individual choice to engage in the activity.10 Our

understanding of rape law leaves wide gaps between what the law requires

and what the party desires.

This Comment begins by examining the histor ical, cultural, and legal

basis for our current laws on rape.11 It explores the influence that property

law and contract law have had on defining consent, and documents a

lengthy history of female subordination as support for our current

definition.12 The Comment then highlights the failures of law s regulating

consent, and how our current definition neglects to take into account a

variety of circumstances in which a party may legally consent to a sexual

interaction, but by no means makes a choice to engage in the ac tivity.13

The Comment ultimately poses a solution to these ambiguities via the Due

Process Clause and, in support of that solution, discusses recent Supreme

Court decisions that utilize the Fourteenth Amendment to emphasize ideas

of personal autonomy and dignity.14 These legal concepts, though

outwardly broad and nebulous in nature, could arguably have more narrow

relevance in their application to rape laws. While this Comment does not

suggest a specific statutory reconstruction for states to use, it provides the

reader with a vehicle by which the redefinition of consent can occur: the

Due Process Clause of the Fourteenth Amendment.

8 I use a female point of reference here and throughout this Comment because rape and

sexual assault crimes are largely carried out by men against women. This is not in an effort

to diminish the experience that men have as victims of sexual crimes or deny that this ty pe

of crime happens far more regularly than society is willing to recognize. I am hopeful my

analysis of rape laws can be, and should be, app lied to all individuals, regardless of the

gender with which they identify.

9 Legal Role of Consent, supra note 1.

10 Id.

11 See infra Part II.

12 See infra Parts II−IV.

13 See infra Part V.

14 See infra Part VI.