Legal definition of sexual consent varies widely

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 of consent — namely, how it is expressed — 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? Legally, the definition varies widely across the nation.

“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, both verbal and nonverbal, that people engage in to communicate desire or lack of desire.”

“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.

Many Weinstein accusers have spoken about that uneven dynamic. For years Weinstein was one of the most powerful men in Hollywood, and most of his alleged victims were women in their 20s, looking for their first big break.