Rape on and Off Campus

• Jurisdiction: United States,Federal
• Publication year: 2015
• Citation: Vol. 65 No. 1

Rape On and Off Campus

Deborah Tuerkheimer

RAPE ON AND OFF CAMPUS

Deborah Tuerkheimer^*

The need for institutional reform to address the problem of sexual assault, particularly on college campuses, is widely acknowledged. Unnoticed, however, is a profound disconnect between cultural norms around sex and the legal definition of rape. The Model Penal Code and a majority of states still retain a force requirement, effectively consigning most rape—that is, non-stranger rape—to a place beyond law's reach. Of special concern, the dominant statutory approach misconceives or overlooks entirely the role of consent, which has become central to popular and political discourses around sexual assault. In the midst of increasing moves on campus to codify affirmative consent standards ("yes means yes"), rape law remains mired in an archaic view of consent as rather beside the point. This Article recasts the significance of law's preoccupation with force by introducing a taxonomy of cases in which force and non-consent tend to diverge. The no-force/no-consent cases raise a question critical to ongoing reform efforts: does the absence of consent make sex rape? Outside of law, this inquiry has for the most part been resolved; what remains is to reconcile competing interpretations of consent's meaning. In stark contrast, the criminal justice system's treatment of non-stranger rape reflects a doctrine woefully out of step with modern conceptions of sex. Sexual agency provides the theoretical underpinning needed to close this gap.

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INTRODUCTION

Rape has moved to the forefront of our collective consciousness. One striking feature of this new visibility is the centrality of non-stranger rape—the kind of rape that is most ubiquitous and, for most of our history, has remained most hidden.¹ Today, it is acquaintance rape that is in the zeitgeist;² no longer does the weapon-wielding stranger dominate television portrayals,³ captivate the news media,⁴ or saturate political discourse.⁵ These developments both reflect and shape an emerging consensus: when it comes to rape, the most pervasive danger is different from what once was most feared and the problem is more widespread than ever perceived.

The emergence of non-stranger rape as an issue of national importance has generated a range of critiques, focused particularly on the military, on college campuses, and on a "rape culture" that surrounds and sustains faulty institutional responses. Largely absent from these conversations, however, is the substantive criminal law. To be sure, commentators subject the decision-

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making of police and prosecutors to scrutiny, and rightly so.⁶ But, for the most part, ongoing efforts to address rape have ignored the criminal statutes that define rape.

This neglect is troubling. In many areas, rape law is in desperate need of modernization,⁷ and a failure to notice its retrograde features virtually guarantees their endurance. This Article focuses on one such feature—the ambiguous doctrinal treatment of sexual consent. As we will see, in most jurisdictions a statutory force requirement displaces the question of consent.⁸ It is surprising, then, that the issue still tends to surface throughout the case law. When defendants appeal their convictions on grounds that the proof of force was inadequate, courts not only tend to agree, but to remark—gratuitously—on the likelihood that the victim actually consented to the intercourse. To reach this conclusion, courts often deploy retrograde notions of consensual sex and female sexuality. Lacking an applicable statutory definition of consent, rape law enables judicial imaginings that are incompatible with prevailing understandings.⁹ This failing is especially striking when juxtaposed with the notable turn, of late, toward a culture of consent.¹⁰ Until rape statutes are reformed to reflect this cultural shift, judicial perspectives on consent will remain unmoored from legislative guidance and immune from review.

Part I describes this revolution by examining the contemporary campus rape crisis. In this context, consent occupies a critical place in ongoing discussions of both the problem and its solution. Indeed, it is virtually axiomatic that nonconsensual sex is rape; the challenge outstanding is to define consent. On this score, college disciplinary codes seem to be converging on a standard that requires an affirmative expression of some sort, verbal or

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nonverbal.¹¹ Although this standard is not without its detractors,¹² the starting point for debate is that non-consent—as opposed to force—defines rape. Against this backdrop, the Model Penal Code and many state statutes—about half—continue to insist otherwise.¹³ In these jurisdictions, absent force, sex without consent does not qualify as rape. The treatment of this common fact pattern reflects a profound gap between the criminal law and widely shared social norms.

Part II develops a new perspective on the criminal law's consent problem. It does so by analytically isolating a set of cases that might fairly be said, notwithstanding the governing legal framework, to involve rape without force—that is, sex without consent. These cases involve the operation of what I will call "functional force"—recurring dynamics that obviate the need for abundant physical force to accomplish nonconsensual intercourse. This taxonomy of functional force includes three categories: sleep,¹⁴ intoxication,¹⁵ and relational control.¹⁶ In each of these categories, the absence of consent (which I will sometimes refer to as non-consent) is the salient feature; yet rape law renders non-consent largely irrelevant. Where consent appears at all, it is conceived in startlingly archaic ways.

The disconnect between criminal definitions of rape and university definitions of rape has emerged without discussion.¹⁷ The analysis that follows begins to fill this void.¹⁸ I argue that a fundamental divide between the

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treatment of rape on and off campus has consequences that reverberate across domains.

Part III discusses why dueling definitions of rape on and off campus are of concern. Overall, this division raises the specter of campus rape as a sub-criminal offense, one located mainly outside the bounds of our criminal justice system—a reality not lost on victims of campus rape, the vast majority of whom choose not to involve the police.¹⁹ But the burdens of a quasi-criminal approach to rape are not distributed equally. Rather, the discrepancy between competing rape definitions functions to discount the non-forcible sexual violations of women (and men) who are not presently attending college—as it happens, women who are even more vulnerable to these violations than their undergraduate counterparts.²⁰ For victims living in jurisdictions that maintain a force requirement, unless they attend college, there is no resort to an alternate (albeit sub-criminal) definition of rape as sex without consent.²¹ This prospect raises a global critique: insistence that force is the defining feature of rape affords relatively less legal protection to women who lack privileged collegiate status. To help remedy this breach, this Article offers a theory of why—regardless of status—sexual consent matters.

In conclusion, I urge the renovation of rape law.²² Efforts to end sexual assault, on and off campus, cannot succeed unless consent culture migrates to criminal justice.²³

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I. THE CONSENT REVOLUTION

Consent is widely understood as the governing principle in matters of sex. Although the concept is not novel, its visibility and importance are new. These days, sexual consent is prominently featured in mainstream and social media.²⁴ Consent animates social movements;²⁵ it even enters political discourse.²⁶ The meaning of consent remains contested—a subject to which we will return.²⁷ Still, more than ever, consent is on the collective mind.

The rise of consent as a construct of paramount significance is especially evident in the college setting. This development has been propelled by the campus rape crisis.²⁸ Of late, unprecedented attention has been given to the stunning incidence of sexual assault during the undergraduate years—up to one in five women, according to the much-debated federal figure.²⁹ At the same time, due in no small part to the activism of college rape victims,³⁰ it has

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become uncontroversial to proclaim that universities are not responding effectively to the problem.³¹

This massive institutional breakdown encompasses many components, including failure to encourage reporting; failure to provide adequate training to faculty, staff, and investigators; failure to provide adequate services for survivors; failure to coordinate with the efforts of law enforcement; and failure to comply with the requirements and best practices for adjudicating allegations.³² For present purposes, however, one deficit is most relevant: until recently, most college disciplinary codes did not define sexual consent. This omission became glaring—so much so that, last summer, the Department of Education proposed a rule requiring all institutions of higher education to include a definition of consent in their codes.³³

Without a doubt, the nationwide response to sexual assault is on the precipice of change. Three features of the discourse around campus rape are telling. First, reformers begin from the proposition that sex without consent is rape, regardless of the quantity of force used to accomplish it.³⁴ Second, an increasingly mainstream conception of consent requires an affirmative expression of one's will; on this view, passivity (in its extreme incarnation, unconsciousness) does not signify consent to intercourse. Finally, efforts to lend content to the notion of affirmative consent are proceeding without

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engaging the law of rape, which is relatively un-evolved. I discuss these observations in turn.

A. Consent Culture

Last spring, the White House produced a one-minute public...