In society and in law, definition of consent is still a gray area
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, 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 — as in, for example, the rape allegations that surfaced this week against music mogul Russell Simmons, which he denies.
“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.
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.
A number have indicated that his power — and fear of his retribution, both professional and physical — blunted their ability to resist his advances.
One woman who did manage to escape Weinstein’s advances in a 2014 hotel-room encounter addressed the power imbalance in a recent essay. The very word “consent,” actress and writer Brit Marling wrote in the Atlantic, “cannot fully capture the complexity of the encounter. Because consent is a function of power. You have to have a modicum of power to give it.”
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.
For many years, O’Connor points out, “we had this he saidshe said mentality, where you went into court and if you couldn’t prove that you didn’t consent, the activity was deemed consensual.” Also, most states required that the accuser show force was used, to show lack of consent.
“Of course, our thinking and understanding of these cases has evolved tremendously, and so states have acted in response to that,” she says. “What we’re finding is especially at moments like this — when it’s impossible to ignore the conversation — they are … re-evaluating the factors that play into the definition of consent and how it can be expressed.”
For example, O’Connor says, North Carolina is looking at its law that doesn’t allow consent to be revoked once it’s been given — which means that if an encounter turns violent, as in a recent reported case, the accused cannot be charged with rape because the woman consented at the beginning.
And several states have passed laws requiring affirmative consent — going further than the usual “no means no” standard to require an actual “yes,” though not necessarily verbal. Among those states: Wisconsin, California and Florida. In Florida, consent is defined as “intelligent, knowing, and voluntary consent and does not include coerced submission.”
“We’re not there yet,” ’Connor says, “but a lot of states are starting to move the wheels on this.”
Many victim advocates argue that a power imbalance plays a role. In nearly every instance, allegations in recent weeks came from accusers who were in far less powerful positions than those they accused.