'No' still means 'yes': the failure of the 'non-consent' reform movement in American rape and sexual assault law.

• Author: Decker, John F.

1. INTRODUCTION

   New Haven, Conn.

   Yale fraternity's sexist chants

   A Yale University fraternity that counts both Bush presidents among its alumni has apologized after a video surfaced on YouTube showing prospective fraternity members marching through campus chanting obscenities in what a woman's group called "an active call for sexual violence." Pledges to Delta Kappa Epsilon (DKE), which boasts "the maintenance of gentlemanly dignity" as one of its founding objectives, chanted phrases including "No means yes, yes means anal" during the campus march. DKE later publicly apologized in a forum arranged by university officials. "It was a serious lapse in judgment by the fraternity and in very poor taste," said fraternity president Jordon Fomey. (1)

   This was the scene at an educational institution that grooms future presidents, govemors, law professors, and Fortune 500 CEOs. "No means yes" was the clarion call that these bright Ells thought totally acceptable until confronted by outraged individuals within the university. Sadly, this event represented only too well the attitude of many American males when it comes to what standards of conduct should govern sexual relations with another. (2) This view of sex was not isolated for the moment to a prestigious university fraternity. Today, many believe it is totally proper to grab, fondle, and paw another person in a sexual manner unless a scream or slap becomes the response. (3)

   This is the sorry state of affairs in America that prompts the development of this Article. Earlier legal literature has described some of the problems documented in this study. (4) However, sexual assault laws have experienced rapid change in recent years and, as such, the authors concluded that an updated comprehensive examination of the subject of consent and sexual assault would provide a useful contribution to understanding the depth of the problems that still exist with respect to unwanted sex in America.

   This Article explores criminal sexual assault and rape laws on the topics discussed above, as well as case law interpreting and enforcing these laws. The findings and conclusions that follow are products of an exhaustive review of rape and sexual assault laws in all fifty states. The Article focuses on statutes and case law dealing with adult claims of unwanted sex. This study does not undertake an examination of the sexual prohibitions designed to protect minor victims in the various states on the assumption, perhaps faulty, that offenses involving children are taken much more seriously in state legislation and by law enforcement than those directed at adults.

   Part II examines the "non-consent" strictures that outlaw any sexual penetration or sexual contact without consent of another but do not require proof of force, threat of force, or some other circumstance such as physical or mental incapacity of the victim. Part III addresses whether a requirement of victim resistance, physical or verbal, still exists and to what extent it presents a barrier to the successful prosecution of unwanted sex.

   Part IV deals with measures that prohibit non-physical threats or some form of "coercion" resulting in non-consensual sex without force or a threat of force. Part V examines those in positions of authority and whether exploiting that position of trust to gain sexual favor can or should be punished. Part VI focuses on deception of a victim and the degree to which misrepresentations designed to take sexual advantage of another are criminal or not. Part VII explores whether corroboration of a victim's claim of rape is a precondition for conviction. Part VIII looks at the survival of the common law marital exemption to prohibitions on unwanted sexual penetration and sexual contact.

2. NON-CONSENT

   At English common law, a conviction of rape required evidence that the perpetrator used force or threats of force against the victim. Rape was defined as "carnal knowledge of a woman forcibly and against her will." (5) Most jurisdictions in the United States originally adopted this definition of rape to include the force requirement. (6) This Part of the Article analyzes the text of all fifty states' current statutes to determine which states still require evidence of force to convict a perpetrator of a sex offense. A facial examination of the current sex offense statutes across the country shows that many states still require a showing of forcible compulsion or a victim's incapacity to consent for a conviction. (7) Generally, "forcible compulsion" is the statutory language used to denote a force requirement. (8) "Incapacity to consent" generally means an inability to appraise or understand a situation involving a sexual act. (9) Alternatively, some states include non-consent provisions within their sex offense statutes that permit convictions without a showing of force or incapacity, so long as the victims did not consent to the sexual acts. (10)

   This Part splits states into "tme non-consent states," "contradictory non-consent states," and "force states." In true non-consent states, the state can convict a defendant of at least one sex offense by showing that the victim did not consent to the sexual act. The prosecution is not required to show that the perpetrator used force or threats of force against the victim to meet the statutory requirements. Twenty-eight states fall into this category. (11) However, only seventeen of the true non-consent states have non-consent provisions for sexual penetration offenses. (12) The other eleven only have non-consent provisions for sexual contact offenses consisting of the touching of the intimate parts of a person. (13) These eleven states still require a showing of "forcible compulsion" or "incapacity to consent" for sexual penetration offenses. (14)

   In contradictory states, it may appear as though the elements of a sex offense statute are met when a victim did not affirmatively consent to the act. However, statutory definitions of "consent" reveal the contradictory nature of these laws. To establish a "lack of consent" in contradictory states, the prosecution must show either the use of forcible compulsion or a victim's incapacity to consent. (15) Requiring force or a lack of capacity to consent completely negates the purpose of including a non-consent provision. This Article categorizes such states as "contradictory nonconsent" states. Nine states fall into this category. (16) Three of these contradictory non-consent states also have at least one true non-consent offense in their criminal codes. (17)

   Furthermore, while a number of jurisdictions have implemented some form of a non-consent provision, only two states put the onus on the defendant to prove that he received the affirmative consent of the victim. (18) By not requiring the defendant to obtain affirmative consent from the victim before sexual contact, the other states continue to place some onus on the victim to object to the act. Even Illinois, which defines consent as a "freely given agreement," (19) continues to require a showing of force to prove the absence of consent, thus negating any effect that this statutory definition might have on the underlying charge of sex assault or abuse. (20)

   Sixteen states do not have any non-consent sex offenses. (21) This Article calls these states "force states." Fifteen of the force states require a showing of either "forcible compulsion" or "incapacity to consent" for at least one of their respective sex offenses. (22) Massachusetts is the only state that requires a showing of forcible compulsion without consideration of the victim's incapacity to consent. (23)

   Section A of this Part examines true non-consent states' statutes, and Section B examines contradictory states' statutes. Section C provides illustrations of case law that either frustrates or confirms states' statutory adoption of a non-consent standard in sex offense prosecutions. Section D examines which party has the burden of showing consent or non-consent.

   1. TRUE NON-CONSENT STATES

      1. Sexual Contact or Penetration

         With twenty-eight true non-consent states, a trend toward rejecting force as a required element in sex offense prosecutions appears to be forming. However, only sixteen of the twenty-eight true non-consent states have non-consent provisions for offenses involving sexual penetration. (24) For example, in Missouri, a person commits the offense of sexual assault if he "has sexual intercourse with another person knowing that he does so without that person's consent." (25) In Nevada, a "person who subjects another person to sexual penetration, or who forces another person to make a sexual penetration on himself or another, or on a beast, against the will of the victim ..., is guilty of sexual assault." (26) In both of these states, the state need only show the victim's lack of consent to successfully prosecute a sex offense under the statute.

         Yet while states like Missouri and Nevada criminalize non-consensual penetration without a showing of force or incapacity, eleven true nonconsent states impose the non-consent standard only on sexual contact offenses. (27) Ten of those eleven states still require a showing of forcible compulsion or incapacity to consent for sexual penetration offenses. (28) For example, Minnesota's fifth-degree sexual conduct statute states: "A person is guilty of criminal sexual conduct in the fifth degree if the person engages in non-consensual sexual contact." (29) Conversely, ali of Minnesota's other sex offenses, including penetration offenses, require a showing of force, threat of force, coercion, or deception. (30) Likewise in Kansas, the sexual battery statute states: "Sexual battery is the touching of a victim who is not the spouse of the offender, who is 1 6 or more years of age and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another." (31) Yet Kansas's other sex offenses, including sexual...