Definition of consent is debated
Laws vary widely, and many states don’t address issue
For two months now, as accusations of sexual misconduct have piled up against Harvey Weinstein, the disgraced mogul has responded over and over again: “Any allegations of nonconsensual sex are unequivocally denied.”
Consent is a concept central to law on sexual assault, and will likely be an issue in potential legal cases against Weinstein, who is under investigation by police in four cities, and others accused in the current so-called “reckoning.”
But the definition is a matter of intense debate: Is it a definite “yes,” or the mere absence of “no”? Can it be revoked? Do power dynamics come into play? And legally, the definition varies state by state.
“Half the states don’t even have a definition of consent,” says Erin Murphy, a professor at New York University School of Law who’s involved in a project to rewrite a model penal code on sex assault. “One person’s idea of consent is that no one is screaming or crying. Another person’s idea of consent is someone saying, ‘Yes, I want to do this.’ And in between, of course, is an enormous spectrum of behavior.”
“It’s pretty telling,” Murphy adds, “that the critical thing most people look to understand the nature of a sexual encounter — this idea of consent — is one that we don’t even have a consensus definition of in our society.”
Many victim advocates argue that a power imbalance plays a role. In nearly every instance, the allegations in recent weeks came from accusers who were in far less powerful positions than those they accused — as in, for example, the rape allegations that have surfaced against music mogul Russell Simmons.
“You have to look at the power dynamics, the coercion, the manipulation,” says Jeanie Kurka Reimer, a longtime advocate in the area of sexual assault. The anti-sexual violence organization RAINN tracks the various state definitions of consent. The differences make for a situation that is “confusing as hell,” says Rebecca O’Connor, the group’s vice president of public policy.
Murphy, at NYU, says that when the American Law Institute began a project several years ago to rewrite sex assault laws in its 1962 Model Penal Code, consent was the first thing it tried to define. The institute — an elite body of judges, lawyers and academics — issues model laws that are often adopted by state legislatures. The project is aimed at updating the laws and dropping some outdated notions, like the idea that rape cannot occur within a marriage.
“It’s been a laborious process,” notes Murphy. It took about five years to achieve the current consent definition , which recognizes that the essence of consent is willingness — but that how willingness is expressed depends on context.
“We’ll see how all this plays out, because when you train the national spotlight on it, suddenly action is born,” O’Connor says.