Category: Criminal Law

5

California’s College Rape Rule is Probably a Bad Idea (but not for the Reasons the Critics Say)

Jonathan Chait has joined the chorus of critics of the new affirmative consent rule in California for college campuses. Like others, he contends that the new rule effectively criminalizes ordinary sexual activity among college students. For three reasons, I think the claim is not well supported.

First, consent standards probably do not matter. Dan Kahan did the best study on this issue and the results are pretty clear. No matter what you tell people examining a rape case, they end up applying their own notions of consent. To the degree that any instruction of the law matters the effect size is small. I think this finding will hold true in adjudications under the California affirmative consent rule.

Second, stories of the alleged rapist and victim almost never match rendering legal standards as side issues and putting credibility as the central problem of rape cases. There are normally significant discrepancies between the accounts of alleged rapes. For the people willing to intentionally lie (either way), the new rule just indicates the content of their lie must change. For example, instead of saying, “she never objected,” a defendant would say “she said ‘yes.'” Even for those cases where the discrepancies are based upon cognitive biases or other unconscious factors, it is likely, if history is a guide, that the differences will align around the legal rule in place.

Third, the drunken sex cases that the critics are focused on are almost never resolved based upon the consent standard. The cases instead rely on incapacity. Whether a negative or affirmative consent standard applies is simply irrelevant in a case where the victim was too intoxicated to consent. The affirmative consent standard is a red herring in the primary scenario identified for overpunishment on campuses.

Even with all of those reasons to doubt its effectiveness in changing case outcomes, the California rule might simply be innocuous. However, there is a real danger that rule changes like this feed into a very dangerous cultural myth about rape law. Stephen Schulhofer probably said it best in his book Unwanted Sex: “Opponents of rape reform have managed to convince a wide audience that standards of permissible conduct are now dictated by ‘hypersensitive’ young women and by ‘radical’ feminists committed to a highly restrictive, Victorian conception of sexual propriety…. The reality is far different. The claim that legal rules, campus behavior codes, and company policies enshrine radically overprotective, puritanical rules of conduct is a myth.” In roughly half the states in America, having sex with someone who is highly intoxicated, but still conscious, is not rape. Many jurisdictions still apply a resistance or corroboration requirement in charging decisions despite such rules having long since been removed from statutes.  The list of problems with the application of modern rape law is extensive. Unfortunately, the backlash against the California affirmative consent rule has already helped spread the myth of radical change. And because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative. I hope I’m wrong.

0

Concealing Campus Sexual Assault: An Empirical Examination

On October 1 of every year, higher education institutions across the country are required to publish reports containing crime data for the previous calender year. So, it seemed appropriate today that I would post a draft of my article about whether universities are giving accurate information in those reports regarding sexual assault. The draft is available here and this is the abstract:

This study tests whether there is substantial undercounting of sexual assault by universities. It compares the sexual assault data submitted by universities while being audited for Clery Act violations with the data from years before and after such audits. If schools report higher rates of sexual assault during times of higher regulatory scrutiny (audits), then that result would support the conclusion that universities are failing to accurately tally incidents of sexual assault during other time periods. The study finds that university reports of sexual assault increase by approximately 44% during the audit period. However, after the audit is completed, the reported sexual assault rates drop to levels statistically indistinguishable from the pre-audit time frame. The results are consistent with the hypothesis that the ordinary practice of universities is to undercount incidents of rape. Only during periods in which schools are audited do they appear to offer a more complete picture of sexual assault levels on campus. Further, the data indicate that the audits have no long-term effect on the reported levels of sexual assault as those crime rates return to previous levels after the audit is completed. This last finding is supported even in instances when fines are issued for non-compliance. The results of the study point toward two broader conclusions directly relevant to policymaking in this area. First, greater financial and personnel resources should be allocated commensurate with the severity of the problem and not based solely on university reports of sexual assault levels. Second, the frequency of auditing should be increased and statutorily-capped fines should be raised in order to deter transgressors from continuing to undercount sexual violence. The Campus Accountability and Safety Act, presently before Congress, provides an important step in that direction.

I will be continuing to post about sexual assault at universities and the findings of the study over the next week or two.

8

Is there a Sexual Assault Crisis on College Campuses? Yes and No.

No matter what position you take in discussing rape and sexual assault policy, you can point to some statistic(s) to support your argument. That is largely due to the low quality and/or limited utility of a lot of data about sexual violence. If you do not have any interest in the truth, you can simply pick the statistic you prefer over the ones contrary to your narrative. If, on the other hand, you want a better sense of what is actually happening, you have to put the pieces of data in their proper context. Take, for example, the rate of sexual assault at large universities in the Figure below (based upon Clery Act reports) compared with the rate of forcible rape anywhere in the United States (based upon Uniform Crime Reports).

Figure 1

Taken at face value, you might conclude that sexual assault at large universities has rapidly increased since 2009 and forcible rape has been on a steady decline since 2001. Yet, I think the stronger evidence is that both of those claims are false. The reason that the data is likely misleading is that it relies on reports from institutions under different sets of incentives. As I wrote in my study about the UCR data, police have, based upon my analysis, increasingly been undercounting rape, in part, to meet unrealistic public pressure to continually, repeatedly decrease crime rates. As a result, there has likely been little to no decline (and a possible increase) in the rate of rape since rape rates began falling in the early 90’s.

Why wouldn’t universities have the same incentives to limit reporting of sexual assault incidents to assuage fears of potential applicants, avoid Title IX suits, and maintain a positive public image? I think the best answer is that they still have all of those reasons to undercount, but during the last couple of years another concern has trumped those incentives for a certain segment of large universities. The year 2011 is particularly important because that is when the Jerry Sandusky scandal broke. The figure below shows what happened to sexual assault reports at Penn State.

Penn State

Since 2010, according to Penn State’s Clery Act submissions, sexual assault has increased by an unbelievable 1389%. Is that because sexual assault has been increasing on campus? Almost certainly not. As part of the fallout from the Sandusky scandal and the issuance of the Freeh report, Penn State had its lax Clery Act compliance exposed. Similar spikes have happened at other large universities which account for entire increase during the last two reporting cycles. Big 10 schools, of which Penn State is one, have had the change in their collective rates of rape outpace the national average increase by nearly three times. What seems to be happening since 2011 (when the largest increase in sexual assault occurred) is that increased reporting at some schools has led to a significant spike in reported crimes. Other factors during that time frame such as increased Clery Act audits and Title IX lawsuits might have played a role as well.

So, based upon that assessment, is there a sexual assault crisis on campuses? It depends. If by “crisis” you mean an escalating problem based upon increasing rates of sexual assault, then I don’t think so. However, if by “crisis” you mean a serious ongoing problem with significant ramifications, then the best evidence supports that conclusion.

 

 

12

Why Campus Sexual Assault Tribunals are Needed

Since the Obama administration increased its focus on campus sexual assault in January 2014, there has been a steady flow of articles criticizing university sexual assault proceedings. Authors have decried innocent men being railroaded through a system with limited procedural protections and a low burden of proof. Based upon those sources, one would think that prosecution, expulsion, and punishment of innocent men was the norm. Meanwhile, case after case surfaces where the university either failed to act or acted in a woefully inadequate manner.

Consider the case of Yale. After numerous findings of wrongdoing in Title IX and Clery Act audit investigations were made, Yale had the opportunity to start fresh in handling complaints of sexual violence on campus. The critics of campus tribunals cite schools like Yale as embodying the liberal politically correct ethos they associate with rigged campus tribunals. So what happened after the federal regulators left Yale? Yale has issued three semi-annual reports covering the period of January 1, 2013 to June 30, 2014 during which I count 20 resolved complaints of sexual assault (non-consensual sex) between Yale students. In 10 cases, the university found inadequate evidence or the victim decided not to pursue the complaint further. In the other 10, the university assessed some sanction/punishment as follows: 3 received a 2-semester suspension, 2 received a 1-semester suspension, 3 received a written reprimand, and 2 were expelled. Yale should be applauded for making their handling of cases transparent so that this analysis is even possible. Most schools offer little information beyond what the Clery Act requires. In the end, the numbers at Yale are hardly consistent with an off-the-rails tribunal system.

Meanwhile, at Columbia, Emma Sulkowicz is facing the far more common scenario. Most victims are left on campus with their rapist. Emma has decided to protest Columbia’s indifference to her rape complaint by turning it into her senior honors visual arts project. She will be carrying her dorm mattress with her everywhere she goes until her alleged rapist is kicked off campus.

At my home institution, the University of Kansas, the Huffington Post is reporting today that the university decided that community service was too punitive for a student who “would later admit to campus police that he continued to have sex with the woman even after she said ‘no,’ ‘stop’ and ‘I can’t do this.'” Instead, he received a ban from university housing and probation.

We live in a world where police and prosecutors do not regularly pursue rape complaints and convictions are a rarity. If an attempted murderer was left on campus with his or her intended victim, we would be horrified. If a student brutally assaulted another, we would want the university to take action to protect the victim. Even in the non-criminal cases of sexual harassment at universities, defendants are separated from victims without waiting for a civil suit to be completed in the plaintiff’s favor. As a matter of simple humanity, universities need to protect rape victims by having a mechanism to remove/punish rapists.

Does this mean universities have designed effective and fair sexual assault tribunals? Absolutely not. I have been critical of the uneven protections and ad hoc processes often used. However, simply letting the criminal justice system resolve the matter, as many have proposed, is unrealistic and wrong. We should treat alleged rapists on campus as we would alleged murderers, brawlers, burglars, and other violent criminals. That means an internal university process needs to assess the available evidence to protect victims of sexual assault.

The Assault on Journalism in Ferguson, Missouri

The city of Ferguson, Missouri now looks like a war zone. Rapidly escalating responses to protest by a militarized police force have created dangerous conditions. About the only defense people have is some public attention to their plight. And now even that is being shut down by a series of intimidation tactics. Consider the following:

1) As the Washington Post states, its “reporter Wesley Lowery was detained by police on Wednesday while reporting on the unrest in Ferguson, Mo., following the fatal shooting of unarmed teen Michael Brown by police over the weekend.” Huffington Post reporter Ryan Reilly had his head slammed against glass as he attempted to report on police action.

2) U.S. Courts of Appeals have affirmed the right to record the police. The Justice Department has offered clear, recent guidance on the topic.

3) As the Post’s Executive Editor has observed, the information blackout has been so pervasive that we are not even allowed to know who is executing it:

[Lowery was] illegally instructed to stop taking video of officers. Then he followed officers’ instructions to leave a McDonald’s — and after contradictory instructions on how to exit, he was slammed against a soda machine and then handcuffed. That behavior was wholly unwarranted and an assault on the freedom of the press to cover the news. The physical risk to Wesley himself is obvious and outrageous. After being placed in a holding cell, he was released with no charges and no explanation. He was denied information about the names and badge numbers of those who arrested him.

This is consistent with other anti-transparency measures in the dispute.

4) Police brutality has been a pervasive problem. We can only start a public conversation on the magnitude of the problem if people have the unfettered right to record law enforcement practices.

5) Many people have reported that police in Ferguson told them to turn off cameras and recording devices. Police refused to answer basic questions. Even major media organizations were told to leave.

6) Police tear-gassed journalists from Al Jazeera and local TV crews.

7) Local leaders are not safe, either. Both an alderman and a state senator were detained and tear-gassed.

The United States has not exactly distinguished itself in its treatment of journalists. In 2012, it fell to 47th in Reporters Without Borders’ Press Freedom Index, well behind countries like Surinam, Mali, and Slovakia, largely due to police harassment of photographers and videographers at Occupy Wall Street protests. How far should it fall if police can basically decide unilaterally to make entire cities “no First Amendment zones”? How can the US warn other countries not to “take military action against protesters,” if it allows an out-of-control force like Ferguson’s to plot a media blackout? This is a policy of order-at-all-costs, even if it means “law enforcers” breaking the law with impunity.

I will have more to say later on the underlying dispute (well covered by Mary Ann Franks and Jamelle Bouie). For now, all I can say is: we should be deeply worried about the broader campaign to create “urban battlespaces” in American cities. This is a dangerous amalgamation of police and military functions, thoughtlessly accelerated by the distribution of war-fighting equipment to local law enforcers around the country. Minimal standards of accountability require free access by the press.

1

What is the Largest University in the United States?

You are probably surprised to learn that, if you look at crime data gathered by the Department of Education under the Clery Act, the largest 4-year higher education institution is Liberty University. For those not familiar with Liberty, it was founded in 1971 in Lynchburg, Virginia by Jerry Falwell. According to the school’s 2012 submission to the Department of Education, it had 74,372 students. It seems that Liberty has a booming business in online education and counts students enrolled through that program in its student body. A slightly lower number of students, 12,600, are actually in residence. According to the school’s website, there are now 90,000 online students making it the only 4-year college or university with over 100,000 students. I have to say that I am troubled by the nice, round numbers of students in both categories on the website. Are those just estimates and Liberty does not know its precise enrollment? Or is it really committed to all student totals being evenly divisible by 100?

Liberty’s inclusion of online students as part of Clery Act crime reporting obligations has the effect of substantially decreasing reported crime rates on campus. That seems to frustrate the intention of the law as crimes by online students are not tracked. It also makes it difficult for researchers to properly assess the real rates of reported on-campus crime. One might think that Liberty would be a little more careful in its submissions after running into problems during a Clery Act audit. In 2013, the Department of Education stated its intention to fine Liberty for $165,000 because of numerous violations in prior reporting activity. Of course, in reviewing the past Clery Act audits, I did not see one school penalized for failing to accurately count its student body. But there is always a first.

3

Tony Stewart, Kevin Ward, Jr., and Murder

As many of you have probably read by now, NASCAR driver Tony Stewart is reported to have killed Kevin Ward, Jr. during a dirt track race in New York. If you are curious to see what happened, Deadspin has the video posted here. In the lap previous to Ward’s death, it appeared that Stewart’s car made contact with Ward’s causing Ward’s car to collide with the track wall. Ward exited his vehicle and and walked toward the inside of the track making angry gestures (presumably at Stewart). The racers were under a caution flag after the collision between Stewart and Ward. As Stewart’s car approached Ward, Ward appeared to shout and wave his arms in an angry manner. Stewart’s vehicle appeared to fishtail and strike Ward. Ward was caught in a rear tire of Stewart’s car and was flung a significant distance. Ward’s body laid still on the track and he was later pronounced dead.

Not surprisingly, such an event has triggered strong emotional responses on Twitter and throughout the Web. Many have declared this case an obvious murder. Others have said that Stewart committed vehicular manslaughter. Others have put the blame squarely on Ward for walking into dangerous traffic on a dirt track. I thought it was worth shedding a little light on the topic based upon what the actual law is and the common mistakes observers are making about that law.

Unless Stewart states that he meant to kill Ward (which there is no indication he will do), the likely only viable theory of murder under New York law is murder in the 2nd degree which is defined as:

“Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person…”

Some who witnessed the event and/or the video have stated that Stewart appeared to accelerate in an effort to either bump Ward or spray dirt at him. It is possible that such conduct could rise to the level of “depraved indifference” or at least get to the jury on that question. Other videos or statements might contradict that theory.

Unless I am misreading NY law, I don’t think vehicular manslaughter is an option for the state (unless Stewart was intoxicated). I’m happy to hear from NY criminal law experts in the comments if I am mistaken. That would mean that the general manslaughter provisions would have to be used. First degree would require:

“1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or 2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.”

If the state could prove that Stewart meant to physically hit but not kill Stewart, “1.” could apply. If Stewart actually meant to kill Ward, but was under an extreme emotional disturbance (e.g. rage due to race and prior accident), then “2.” could be a viable outcome.

Second degree manslaughter is fairly straight-forward in New York:

“He recklessly causes the death of another person…”

Although “recklessly” appears as the mens rea requirement for both 2nd degree murder and 2nd degree manslaughter, the type of recklessness required to prove murder (“depraved indifference”) is tougher for the prosecutor to show.

There is also a possible negligent homicide charge which is defined as:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”

Commentators who believe Ward’s “recklessness” or “negligence” make Stewart innocent of wrongdoing will likely disappointed in how criminal law works in this area. The thought processes of the Ward are irrelevant to whether Stewart would be guilty of murder or manslaughter. The conduct and thoughts of Ward are only meaningful under criminal law insofar as Stewart understood them and took action as a result. So, if Ward made it impossible for Stewart to avoid him (which there is no indication of), then the causation element of murder or manslaughter wouldn’t be met. Similarly, if Ward provoked Stewart in a way that was legally sufficient to trigger an extreme emotional disturbance (again, there is no evidence of this that I have seen), then Stewart should not be convicted of murder. It is a common mistake for 1L’s to focus on the victim’s actions and thoughts in analyzing negligence/reckless fact patterns in Criminal Law and so it is not at all surprising to see such confusion in public discourse. In such cases, it is even theoretically possible for a defendant to be guilty of murder or manslaughter, but not the tort of wrongful death (despite the difference in burden of proof) because tort law more directly includes the conduct of the victim in determining wrongdoing. Criminal law, on the other hand, puts the focus squarely on the acts and thoughts of the defendant.

3

Teaching with Bad Court Opinions

In teaching Criminal Law, I like to use one or two cases a semester where the court opinion seems to fundamentally misunderstand a legal concept that we are discussing. I think doing so accomplishes two ends: 1) it provides a clear illustration of a common mistake students make so that they can better avoid it; and 2) shows that, particularly in criminal law, there is a high need for good lawyers and judges. I was curious if anyone else teaches using opinions that are not just flawed, but almost certainly wrong. As an example, this is an excerpt from a case (Pennsylvania v. Collins, 810 A.2d 698 (Pa. Super. Ct., 2002)) I used in teaching summer starters last month about the voluntary act requirement.

The evidence at the trial established that, on March 17, 2001, Collins agreed to pick up her friend, Megan Neff, and drive to McDonald’s to purchase a milkshake for Collins’s mother. On her way to Neff’s house, Collins stopped at a mini-market, where she encountered several acquaintances. They invited her to a party in a nearby neighborhood and Collins accepted the invitation. While at the party, Collins drank something that “tasted like fruit punch.” Fifteen minutes later, she left the party and went to Neff’s residence. Collins arrived at Neff’s house and complained that she was suffering from a headache. As the two proceeded to McDonald’s, Neff observed that Collins was not engaged in conversation. Without explanation, Collins drove past the McDonald’s and straight through five or six stop signs without stopping. Neff began to yell at Collins telling her to stop the vehicle, but Collins gave no indication that she heard Neff. Collins turned the vehicle and began to swerve into oncoming traffic. Shortly thereafter, Collins applied the brake and Neff steered the car off the road. At that point, Collins appeared to lose consciousness. When the police arrived, Collins was slumped over the steering wheel of the car. As ambulance attendants took Collins out of the vehicle, she regained consciousness and began to scream and lash out at the attendants. At the hospital, Collins’s urine sample tested positive for phencyclidine or PCP.

The Commonwealth charged Collins with Driving Under the Influence of a Controlled Substance (phencyclidine or PCP) and Failure to Comply With Duties at a Stop Sign. At the conclusion of the trial, the jury found Collins guilty of driving under the influence of a controlled substance…. Collins appealed… Collins [] asserts that the trial court should have required the Commonwealth to prove that she voluntarily ingested the controlled substance. We disagree. Section 3731 states, in pertinent part:

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined. A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances:
****
(2) While under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to a degree which renders the person incapable of safe driving.

75 Pa.C.S. § 3731(a)(2). Therefore, in order to sustain a conviction under Section 3731(a)(2), the Commonwealth had to prove beyond a reasonable doubt that Collins was: (1) driving, operating or physically controlling the movement of a vehicle and (2) that while operating the vehicle, Collins was under the influence of a controlled substance to such a degree as to render her incapable of driving safely.
Collins’s arguments would require this Court to engraft an additional element–namely voluntariness–into the DUI statutory scheme. However, the statute does not make use of the terms “intentionally,” “knowingly” or “willfully.” Therefore, the Commonwealth was not required to prove that Collins’s intoxication was intentional or voluntary…. Collins also contends that the trial court’s jury instructions violated Section 301 of the Pennsylvania Crimes Code. We find this argument to be unpersuasive. Section 301 states, in pertinent part:

§ 301. Requirement of voluntary act
(a). General rule.–A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
18 Pa.C.S. § 301….

Moreover, as discussed above, the statutory language found in 75 Pa.C.S. Section 3731(a)(2) omits any reference to culpability. We interpret this omission to mean that the legislature intended Driving Under the Influence to be a strict or absolute liability offense. Therefore, we conclude that the trial court’s jury instructions did not violate the voluntary act requirement of Section 301.

In my experience, students sometimes conflate mens rea and the voluntary act requirement in cases involving intoxication (rather than separating the analysis of intoxication into actus reus and mens rea). I think the Collins case can show how that conflation happens and why it is a mistake. The Collins court dismisses the universal voluntary act requirement in Pennsylvania because the court believed the statute to be strict liability. That’s a non sequitur. And so a woman who involuntarily ingested PCP was convicted for driving under the influence of the PCP that she didn’t voluntarily consume. The case also provides a nice contrast with State v. Martin which I believe most (?) Criminal Law casebooks include in the voluntary act section. I welcome any thoughts on the using the Collins case and “bad” opinions in general as teaching tools.

6

The Strange Doctrinal Legacy of Lawrence v. Texas

I’m currently working on a project concerning the doctrinal legacy of Lawrence v. Texas and continue to be amazed at the varied ways judges have read Justice Kennedy’s majority opinion. The Supreme Court’s opinions in the case have been cited over 700 times, but only rarely in an expansive manner. Justice Scalia’s parade of horribles, articulated in his dissent, has not been realized (particularly in regard to criminal laws). Laws criminalizing prostitution, public indecency, adultery, adult incest (even without blood relation), fornication, bigamy, bestiality, obscenity, and drug use have all survived Lawrence challenges.

However, in a few unanticipated areas Lawrence has had a notable effect. In one instance, Smithkline Beecham Corp. v. Abbot Laboratories (9th Cir. 2014), Judge Reinhardt on the Ninth Circuit cited Lawrence, along with other Supreme Court opinions regarding sexual orientation, in a Batson challenge case.  Reinhardt concluded that “heightened scrutiny applies to classifications based on sexual orientation and that Batson applies to strikes on that basis.” As a result, the court held that the decision to exclude a juror on the basis of sexual orientation violated Batson and ordered a new trial.

A stranger application, in my opinion, arose from a defamation lawsuit in Massachusetts. The First Circuit did not resolve the issue but described the district court holding in the case as follows:  “… the court held that imputing homosexuality cannot be considered defamatory per se…” Amrak Productions, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005); Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass. 2004). The district court’s holding was particularly unusual because it did not need to reach the issue at all. The district court held, and the First Circuit agreed, that the plaintiffs had simply failed to state a defamation claim.

What strikes me as remarkable after reviewing all the cases that have cited Lawrence is that the majority opinion has primarily had effects in areas of law far outside of what was anticipated. Indeed, anti-sodomy laws, like the one at issue in Lawrence, are still enforced in several states (primarily in cases involving prostitution crimes and minors). So, does that mean that commentators were just really bad at predicting the effect of the new Lawrence doctrine? Or did Scalia’s dissent serve its function by encouraging courts to read Lawrence narrowly in the areas of law with which he was concerned?

8

Everyone Likes Affirmative Consent, Until They Don’t

David Bernstein at Volokh Conspiracy points to and agrees with an article by Cathy Young at Reason.com regarding a proposed rule in California to require “affirmative consent” before sexual contact at universities in the state. Such a rule was made most famous over two decades ago when Antioch College adopted a code requiring affirmative consent for every level of intimate contact. Bernstein and Young are not fans of the proposal because, in part, they believe that the use of an “affirmative consent” standard is overexpansive.

Every semester that I teach my Sex Crimes seminar, we discuss the Antioch College rule, Michelle Anderson’s article advocating a similar rule, and affirmative consent in general. I think the pattern of my class discussion is informative regarding the arguments that Young and Bernstein make. Initially, every student is hostile to the Antioch approach (which is broader than the California proposal). They generally come to agree that the rule is at odds with romance and spontaneity in the bedroom. Indeed, the idea of someone forming several oral contracts for each intimate encounter sounds like a “turn-off” to most of my students.

When I add a few wrinkles, however, the students become big fans of affirmative consent. I ask if they would be comfortable if a date started tying them up and spanking them with a leather whip without getting affirmative consent? Would they be okay if someone initiated anal sex without asking?

So, why do they support affirmative consent in those situations, but not in the case of heterosexual vaginal sex? The answer seems to be based upon each student’s norms and conception of deviance. For atypical (subjectively defined) sex acts, students want an affirmative consent model. For “normal” acts based upon a cultural narrative of what is “supposed to happen,” negative consent is sufficient

Does it follow, then, that affirmative consent should be required in all instances? No. The point of the exercise is to illustrate why many sexual encounters might be considered sexual assault by one person (based upon his his or her norms about consent), but not by the other. The more deviant or intimate the act based upon general societal norms, the more likelihood that at least one participant wants affirmative consent. If we are to use consent as the primary element in rape statutes, we should view the discussion of affirmative vs. negative consent as an either/or proposition. Instead, a widely-applicable consent rule needs to recognize that a universal affirmative or negative consent rule is firmly at odds with our sexual culture.

It has been my experience in teaching Criminal Law and Sex Crimes that students, even more so than other areas of law, tend to believe that their norms about consent are both typical and reasonable. And yet, when they start discussing those norms, they discover that their beliefs vary in substantial ways from other students. And it isn’t just law students. Later this year, I will be publishing an article-length response to Jed Rubenfeld’s Yale Law Journal piece retheorizing rape law. Although I was dismayed and shocked by a lot of his contentions, there was one footnote by Rubenfeld illustrating his view of a sexual norm that truly surprised me. Rubenfeld wrote:

But really: is it so clear that all unconscious sex should be criminal? Among well-settled couples, long used to sharing the same bed, sexual contact of various kinds with a sleeping person is common. No one thinks all such touchings are criminal. Doesn’t this undermine the idea of an ipso facto rule against sexual contact with the unconscious?

If Rubenfeld were a rape trial fact-finder or legislator, his view of consent with unconscious persons would be very different than mine affecting the case outcome or proposed legislation. We could define that difference based upon affirmative and negative consent (with an unconscious person unable to give affirmative consent), but I think that is unhelpful. From my perspective, the reason that the acts described by Rubenfeld (“sexual contact with the unconscious”) are problematic are orthogonal to consent. And the debate about affirmative and negative consent models often distracts us from other alternative formulations of rape law.