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Affirmative Consent: The Solution to Failing SA Prosecutions

By Roohie Sheikh

Edited by Manasi Chande and Lindsay Tito


The steady of rise of rape and sexual assault on college campuses has resulted in necessary changes to Title IX policies across the nation. Over the past few years, many institutions’ Title IX departments have adopted affirmative consent -- an explicit statement of agreement to perform a sexual activity -- as a standard for determining sexual assault and rape cases. While universities have made adjustments to their policies, criminal courts have been slow and very hesitant to accept such changes. Research on sexual assault reports show how this is reflected in the rate of reporting. A 2015 study conducted by the Bureau of Justice Statistics showed that only 20% of female college student victims reported their assaults to law enforcement, citing a myriad of concerns including, but not limited to, fear of reprisal, lack of action, and the fear of initiating a lengthy investigation process. [1] One of the most consistent reasons given was that survivors believed law enforcement would/could not do anything to help.[1] These fears are entirely reasonable given the heavy burden of proof placed on victims to show that their case falls under one of the limited exceptions to “lawful” sex. Though the wording of Texas rape laws are similar to those of other states or countries using the affirmative consent standard, there are fundamental differences, resulting in fewer convictions and more lenient sentencing. Until Texas rape laws incorporate affirmative consent as a standard, they are incomplete and ineffective in facilitating justice for survivors. This article will contrast US rape laws similar to Texas laws with Canadian rape laws, proving the necessity of affirmative consent as a standard for sexual assault convictions.


Sexual Assault in Texas is considered to be a second degree felony, and aggravated sexual assault is classified as a first-degree felony. Texas penal code requires the State to prove that there was forcible compulsion, meaning the defendant overcame the victim’s resistance. The exception to this is if the victim was mentally incapacitated or physically helpless.[2] While there are situations that can be easily classified under one of these two exceptions, many victims find their situations in a gray area. For example, incidents where the victim is voluntarily intoxicated or “blacks out” is a common case in which forcible compulsion is difficult to prove. As Texas courts explained in Orgain v. State, the standard of forcible compulsion focuses on the defendant’s actions in response to the victim’s non-consent.[3] Although this clarification does seem to place the issue of sexual assault on the assailant’s actions, it does not and cannot effectively bring justice to survivors. The burden of proof remains on the victim to demonstrate that their case falls within the few exceptions to consensual sex, necessitating infinite development to the already established exceptions. This leaves room for speculation as to whether or not a victim’s action is resistant enough or qualifies as consent. The open-ended questions posed in these cases allows gendered stereotypes concerning what a woman/victim may do to prevent their assault and what a man/defendant’s reasoning is in performing the act. Valerie Ryan gives an example of how rape law allows for subjective allocation of responsibility. She writes that perceptions regarding intoxicated behavior reflect gendered stereotypes. When a male perpetrator is intoxicated, his intent is questioned and thus culpability in the incident is decreased; however, when a female victim is intoxicated, she is thought to desire the act, making her responsible for her own assault.[4] The framing of sexual assault laws provides ample room for these assumptions, as the standard of forcible compulsion requires the victim to prove their case is one of the exceptions to lawful intercourse.


Sexual assault laws in Canada have made much progress since the 1980s, when courts began to use affirmative consent as a standard for determining sexual assault or rape. Though there was no specific statute defining affirmative consent, courts began to distinguish proof of mens rea from real communication of consent. [5] This became common practice until 1992, when an act amending the Criminal Code passed, codifying affirmative consent laws.[6] However, the amended laws were largely shaped by landmark cases for years after their passage. Understanding these historical cases is necessary to understanding the differences in practice between Texan and Canadian sexual assault laws. The first case to look at is R. v. M.L. This was a 1994 sexual assault case in which a 16-year-old girl was sexually assaulted by her step-father, but did not verbally object or show any signs of physical resistance. The Supreme Court restored the conviction overturned by the Nova Scotia Court of Appeals, holding that submission or non-resistant conduct does not show consent. Specifically, the court made a distinction between communication/non-communication and consent/non-consent. Consenting is a choice separate from communicating consent. The opinion elaborated that non-communication plays the same role as non-consent in analyzing actus reus.[7] The next case, R v. Park was decided later that year and expanded on this opinion. The victim in this case had gone on a date with the defendant two weeks prior to the incident and had made it known that she did not believe in premarital sex. She explained that as a result of a previous traumatic incident, she went into shock during the attack. Park could not recollect most of the assault after the point where she was pushed onto the bed. The defense argued that the defendant had an honest mistaken belief that she had consented. The Supreme Court ruled that because consent had not been communicated, there was no valid defense of belief in consent. The opinion explained that sexual assault in common law is understood as sexual activity without consent, and that the lack of communicated consent rather than the victim’s resistance is what makes the crime. As Judge L'Heureux-Dubé writes, “The mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying "no ", but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying "yes ".[8] R v. Park is instrumental in shaping how the 1992 amendment was interpreted. The judgement stands in stark contrast to Texas sexual assault cases which would question the force needed for the defendant to overcome the victim’s resistance. Instead, the court claimed this crime was concerned with consent as a state of mind, and as the defendant was aware that Park had not explicitly communicated consent, this established the mens rea of sexual assault without shifting the burden to the victim to prove resistance. The most significant part of this judgment was that the mens rea was not established by requiring Park to show some sort of resistance. Rather it narrows the analytical focus of this case by requiring the defendant to prove that Park had consented in some unambiguous way.[8] In 1997, Canada’s Supreme Court decided R. v. Esau on evidentiary grounds, but addressed some issues of consent in the dissents. In fact, one judge, McLachlin, dismisses belief in consent as a valid defense without proof of ambiguity. She refers to Lucinda Vandervort’s definition of consent, claiming that consent is the communication of permission to perform an act which a person would otherwise be obligated not to perform. The act of consent is therefore performative, similar to a promise. Its function lies in the communication of a mental state.[9] Texas rape laws necessitate proof of non-consent, which is determined by forcible compulsion rather than communication. R. v. Esau establishes that the fundamental difference between Canadian sexual assault laws and Texas sexual assault laws is the focus on communication. In this way, Canada’s sexual assault laws leave no room for traditional analyses based on nonlegal gendered stereotypes such as clothing, intoxication, or prior sexual activity.


Though commonly cited as a case developing sexual assault laws, R. v. Ewanchuk shows how this framework for sexual assault works in practice. This 1999 case questions whether the defense of implied consent is valid. The defendant brought a young woman into his trailer and began making sexual advances to which she verbally objected but did not physically resist. At trial, the judge ruled that the complainant had not consented, but acquitted the defendant on the grounds that there was implied consent because of her nonresistance. The Supreme Court granted the appeal, and held that the defendant must show reasonable doubt that the victim had consented. Justice Major writes in the majority opinion that consent can only be considered from the perspective of the accused. The defendant claimed to have believed the complainant consented because of her lack of action, which Major contests. While she may not have resisted, the belief in consent can only be a valid defense if there was some verbal affirmative communication to contradict her verbal objections to the act. Major applied the reasoning from R. v. M.L and determined that a mistaken belief of consent in this case was not a mistake based in fact. Because mistakes not based in fact are not exculpatory, they cannot be grounds for acquittal.[10] The ruling in R v. Ewanchuk represents the majority of sexual assault cases in Canada, raising the standard for defendants to prove affirmative consent.


The standard of affirmative consent in Canadian rape law translates in a number of ways. A 2019 case in the Ontario Superior Court of Justice, R v. Ljiljanic, showed how the understanding of consent as a performative act impacts sexual assault convictions. This case involved two separate instances. Each of these were objections to specific sexual acts, but not sexual activity. The appellant, Ljiljanic, had been convicted on one account. While the majority of the opinion focused on the evidentiary aspect of the charges, the definition of consent allowed for each of these charges to be evaluated separately. In the first incident, the respondent had consented to sexual intercourse under the condition that a condom must be used. In the second, the respondent had not explicitly consented to the appellant ejaculating in her mouth. The trial judge found that there was not enough evidence to corroborate the allegations of non-consent in the first incident, but found a number of texts corroborating the second charge.[11] While the sexual activity was consensual, this case broadened the scope of sexual assault to include specific acts. While the common understanding of consent is applicable to any sexual act, U.S. sexual assault laws contextualize consent with the force used to overcome resistance to the act. In the first instance, the respondent had not physically resisted the act and the appellant had not used force, yet this would have been considered sexual assault, as the respondent’s consent was conditional on the use of protection. By the forcible compulsion standard, the lack of resistance would have been the determining factor. This case shows how the focus on consent in Canadian sexual assault laws broadens the scope of sexual assault to include any non-consensual sexual activity as opposed limiting sexual assaults to “severe” and violent encounters.


A 2014 case, State v. WR, sets the tone for sexual assault cases without the affirmative consent standard. The ruling overturned State v. Camara, which held that “the conceptual overlap between the defense of consent and the element of forcible compulsion does not forbid imposing on the defendant the burden to prove consent by a preponderance of the evidence”.[12] Washington’s Supreme Court turned to a 1987 Supreme Court case, Martin v. Ohio, to analyze the appropriate assignment of burden of proof for an aggravated murder charge. Following Martin, the Supreme Court in Camara determined that consent was a concept integral to the forcible compulsion standard.[13] While the burden of proof for forcible compulsion is assigned to the State, the defendant has the burden of proof for a negating single element of the crime (consent). This ruling raised questions over the function of the due process clause if the burden of proof for each element of the crime and its defense could be shifted to the defendant.[12] State v. WR analyzed the constitutionality of the “negates” analysis in Camara. The victim, JF was visiting her aunt who lived with defendant WR and his sister when the incident occurred. WR had testified that JF had a crush on him and they engaged in sexual activities previously. JF had initially denied these claims, but admitted to prior sexual activity at trial. The court believed the main question was one of credibility and found JF’s testimony to be significantly more consistent than that of both WR and his sister. He was found guilty of second-degree rape which he appealed, claiming that the court erred in burdening him with proving that the act was consensual. On appeal, the Supreme Court of Washington determined that the act of consent was not an affirmative defense, rather a negation of forcible compulsion. Thus, placing the burden of proof of consent on the defendant was a violation of due process.[14] However, this opinion failed to acknowledge the court’s ruling on US v. Smith, which held that a complete defense is not necessarily one that establishes complete innocence. The question of whether consent is an affirmative defense to sexual assault or an integral component of the crime remains unanswered. This creates a shifting goalpost for prosecuting sexual assault cases. The State must disprove consent or prove non-consent as consent negates forcible compulsion and also must prove the defendant overcame the victim’s active resistance.


This is further illustrated in a 2005 case, State v. Gomez, in which the defendant was charged with sexual assault of a mentally incapacitated person. The victim’s mental capacity was between four and eight years, so the trial court held that this was forcible compulsion because the victim saying “stop” was reasonable resistance for a person with her mental capacity. The Missouri Court of Appeals reversed and remanded the trial court’s ruling. The court found that the victim’s mental incapacity was not manifest to the defendant, as there was no interaction prior to the assault. The Appeals Court interpreted the legislature’s intent in removing the phrase “without that person’s consent” from Missouri Statutes for Sexual Offenses to mean definitions of consent are no longer applicable to rape/sexual assault statutes. Although the victim did show reasonable resistance, the state was required to prove that the defendant had knowledge that this was non-consensual to prove intentional forcible compulsion.[15] Under an affirmative consent standard, the verbal communication of non-consent would prove sexual assault. Even if the victim was unable to physically resist or express non-consent, the act would be classified as sexual assault. The focus of Missouri’s rape statute on the mens rea of the assault as an integral part of the crime as opposed to an independent element of it prevents justice for victims. The fundamental difference between these sexual assault statutes is their answer to the question “Is sexual activity consensual by default?”.


In 2014, California passed “Yes Means Yes”, the first affirmative consent in the U.S. Following California, Connecticut, New York, and most recently Illinois have all incorporated affirmative consent into their criminal codes. Notably, California added provisions specific to universities. Universities in “forcible compulsion” states have begun to use affirmative consent standards, yet progressive rape/sexual assault laws have yet to codify consent. Until the standards for sexual assault prosecutions are changed, justice for survivors remains elusive. States and countries like Canada, the Netherlands, and Germany have seen great success in bringing justice to survivors after incorporating affirmative consent into their laws. These examples show that affirmative consent may be the most effective reform to sexual assault laws in the U.S.


 

[1] Campus Sexual Violence: Statistics. ʀᴀɪɴɴ. (2022) https://www.rainn.org/statistics/campus-sexual-violence


[2] https://ndaa.org/wp-content/uploads/sexual-assault-chart.pdf Comparison of Sexual Assault Statutes of 50 States. ɴᴀᴛɪᴏɴᴀʟ ᴄʀɪᴍᴇ ᴠɪᴄᴛɪᴍ ʟᴀᴡ ɪɴsᴛɪᴛᴜᴛᴇ ᴀɴᴅ ɴᴀᴛɪᴏɴᴀʟ ᴡᴏᴍᴇɴ's ʟᴀᴡ ᴄᴇɴᴛᴇʀ. (2016). https://ndaa.org/wp-content/uploads/sexual-assault-chart.pdf


[3] Orgain v. State, 22 Tex. 47 (2016)


[4] Valerie M. Ryan, Intoxicating Encounters: Allocating Responsibility in the Law of Rape, 40 Cᴀsᴇ W. Rᴇs. L. Rᴇᴠ. 407, (2004)


[5] Lucinda Vandervort, Affirmative Sexual Consent in Canadian Law, Jurisprudence, and Legal Theory, 23.2 Cᴏʟᴜᴍ. J. Gᴇɴ. L. 395, https://philarchive.org/archive/VANASC


[6] S.C. 2018, ᴄ. 29


[7] R. v. M. (M.L.), 2 S.C.R. 3 (1994)


[8] R. v. Park, 2 S.C.R. 836 (1995)


[9] R. v. Esau, 2 S.C.R. 777 (1997)


[10] R. v. Ewanchuk, 1 S.C.R. 330 (1999)


[11] R. v Ljiljanic, ONSC 6316 (2019)


[12] State v. Camara, 113 Wash. 2d 631 (1989)


[13] Martin v. Ohio, 480 U.S. 228 (1987)


[14] State v. W.R. 118 Wash. 2d 757 (2014)


[15] State v. Gomez, 211 Ariz. 494 (2005)


[16] Supra note 5


[17] Lucinda Vandervort, Sexual Assault: Availibility of the Defense of Belief in Consent, 84 LA REVUE DU BARREAU CANADIEN 89, https://cbr.cba.org/index.php/cbr/article/view/4027/4020


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