Analysis Of Affirmative Consent Standard

Joseph Masso

Prof. Feeley

POSC 115A

06 May 2014

Affirmative Consent Standard First Draft

Executive Summary

The ambiguity contained within rape case rulings has become too important to perpetuate without any formal solutions in place. The affirmative consent standard moves to neutralize this lack of clarity regarding consent between the two parties engaging in sexual intercourse by requiring both parties to ask and receive a verbal yes before engaging in any relations. Sexual consent is to never be assumed and any inconsistency in state or federal law can be improved by utilizing this principle.

Statement of Issue/Problem:

Within the past thirty years, the courts have extended the legal parameters of rape to include the withdrawal of consent after penetration. Courts and state legislatures around the country should seek to modernize rape statutes to protect all victims of nonconsensual intercourse, regardless of when those victims manifest their lack of consent. Within English common law, a conviction of rape required evidence that the perpetrator used force or threats of force against the victim. There is much contradiction between states regarding consent. In an effort to eliminate moral ambiguity or the question of consent, an affirmative consent standard should be set into place that refines the classification of consent from “not saying no to sex” to saying yes to the sex with words or obvious enthusiastic actions.

Rape in the United States is defined as “an act of sexual intercourse accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” The courts have expanded this definition to include the withdrawal of consent after pene...

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...r an affirmative consent standard, the law presumes that a woman does not grant consent unless she is asked. The responsibility will be on the male to demonstrate such consent if the woman, in her complaint, alleges no such consent was given; therefore, it will be his story of the events of the evening that is under examination by the court, rather than that of the woman. What affirmative consent represents, then, is a shift in the way society, and in particular the courts, look at the process of consenting to sexual intercourse. Affirmative consent recommends that sex should be viewed as an act that should be entered into willingly by both parties and that the opinion of both parties is equally valid in the eyes of the legal system. Affirmative consent marks a model of sexual interaction where both participants take responsibilities for their desires and actions.