A rejoinder in the Discourse on Negotiation Before Sexual Penetration

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A Rejoinder in the Discourse on Negotiation Before Sexual Penetration

Michelle J. Anderson

I thank the five commentators for their insightful analysis and critiques and I am pleased to engage them in a dialog based on their remarks.

Under traditional rape law, as well as under the No and Yes Models of reform, the question of consent asks what the victim acquiesced to allow the defendant to do to her. When non-consent is required, the mens rea question is: What did he infer (based on her verbal and non-verbal cues) she acquiesced to allow him to do to her? In these circumstances, negligence may be an appropriate standard. As Andrew Taslitz explains, men may not be (but should be) aware of a substantial and unjustifiable risk that the sexual penetration they engage in is not consented to.

“By obviating the importance of the defendant’s subjective appreciation about consent,” Robin Charlow argues, “the negotiation model runs counter to the general principle that the more serious the crime, the higher the required culpable mental state.” Kimberly Ferzan argues further that the Negotiation Model imposes strict liability. However, the Negotiation Model actually retains traditional criminal mens rea. An actor would rape purposely when it was his conscious object to engage in sexual penetration that was not negotiated and agreed to. An actor would rape knowingly when he was aware that he penetrated someone without negotiation leading to agreement beforehand. An actor would rape recklessly when he consciously disregarded a substantial and unjustifiable risk that he did not negotiate an agreement about the sexual penetration with his partner beforehand. Of course these rapes would be lesser offenses—and deserving of lesser punishment—than rapes that included extrinsic, violent attacks. Reasonable mistake should be a defense: the actor honestly believed that he engaged in negotiation and came to an agreement about penetration but he did not actually do so.

Contrary to Ferzan’s position, I do not embrace a “sex as contract” model nor wish to import contractual negotiation principles into the criminal law; I only wish to emphasize the importance of mutual consultation. Although fraud in the inducement vitiates a contract, there is scholarly debate about which deceptions should criminalize sex. I think it is easy to draw a line between someone who preys on a woman with mental disabilities, conning her into believing that sexual penetration is medically necessary to prevent her death, and “the woman who lies about her breast augmentation” to obtain sex. That said, the Negotiation Model does not mandate that the line fall in a particular place, so perhaps I spoke too broadly: some, not all, misrepresentations should be evidence of failure to negotiate.

Ferzan poses the problem of “freshman frat party sex” and wonders how the Negotiation Model would “distinguish between good drunken sex and bad drunken sex.” The distinction would be between those instances in which two people negotiated and agreed to engage in (drunken) sex and those in which they did not. Alcohol loosens inhibitions, but it does not ordinarily take away the ability to talk and consult with one another—and when it does, the sex is already rape under the status quo.

Charlow and Sherry Colb both contend that people do not talk and consult with one another about whether they want penetration. An identical premise leads to opposite conclusions. Colb worries about under-enforcement. She posits that a rape statute under the Negotiation Model would be ignored and may increase jury nullification. Charlow worries about over-enforcement: imprisoning “a generation of young men,” disproportionately poor and African-American.

First, I am not sure about Charlow and Colb’s shared premise that we do not negotiate sexual penetration. The mores in this area are changing and people increasingly do. A woman whispers that she wants to go down on her date and he whispers back, “Wow, that sounds like fun.” Two men agree not to have sex because neither brought a condom with him. A boy tells his girlfriend, “You really turn me on but I don’t want to have sex because we’re too young,” or “You really turn me on and I want to have sex with you,” and, in either case, she says, “I feel the same way.” We do not think of these interactions as negotiations but they are exactly that. Anytime partners discuss sexual desires and boundaries regarding penetrative acts, they are engaged mutual consultation.

Second, I am not sure that the Negotiation Model poses too great a risk of under- or over-enforcement. I advocate substantial education about the social and legal importance of discussing desires and boundaries before the Negotiation Model becomes law, which would help with both potential problems. Regarding under-enforcement, juries, prosecutors, and judges may resist reform; some have certainly resisted the No Model as it has been adopted. I do not see any reason, however, why rape law requiring mutual consultation would not earn the same acceptance over time.

Regarding over-enforcement, further rape reform will not likely exacerbate the disproportionate incarceration of men of color. Those incarcerated for rape are more likely to be white than those incarcerated for other offenses,1 which may speak to the devaluation of women of color victimized by this overwhelmingly intra-racial crime.2

Unlike Charlow and Ferzan, who contend that the Negotiation Model is radically different from the status quo, Marianne Wesson believes it is basically the same. She argues that failure to negotiate is “at least as slippery” as non-consent, positing, “a variety of gestures, verbal and nonverbal, may be put forward as a plausible claim that they constituted ‘negotiation’ (just as a variety of gestures have been argued to constitute, and not to constitute consent).”

Some ambiguity may be inevitable no matter how a criminal code defines rape, but the focus of the inquiry will be qualitatively different. The Negotiation Model fixes on the actor rather than the victim. Rather than asking, what did she do to imply nonverbally that she wanted him, it asks, what actions did he take to demonstrate that he wished to penetrate her only after they agreed? It requires discussion and participation by both parties. The process part of the proposal—consultation leading to shared understanding—is its contribution.

Wesson points out that “some discussions would fail to legitimize ensuring sexual encounters because the discussants chose to conclude the negotiation without consenting,” and argues, therefore, that “one cannot get away from consent.” Note: these people are talking. This is a huge step beyond what the law currently focuses on, must less requires. The Negotiation Model provides a different lens to analyze these cases, getting to yes—or no—by a process of discourse. Acquiescence implied by non-verbal cues is how the law usually interprets consent. Requiring agreement forged through meaningful (presumptively verbal) communication is an advance in valuing women and humanizing the law.

1 Lawrence Greenfeld, Bureau of Justice Statistics, Sexual Offenses and Offenders 21 (1997). Those incarcerated for sexual assault are substantially more likely to be white. Id.

2 In about 88% of reported rapes, the victim and the offender are the same race. Id. at 11.

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