By: Anupama Selvam
Two weeks ago, members of the American Law Institute (ALI) convened a meeting to discuss proposed reforms of Article 213 of the Model Penal Code in an effort to adopt the code to shifts in social norms surrounding sexual violence.
Recently, shifts in social norms around sexual violence have facilitated meaningful discussions about the definition of rape. Most of these discussions happen at a cultural level, largely due to the work of anti-rape activists and the courage of survivors who are willing to tell their stories in order to combat rape culture.[1] Because of this dialogue, general misconceptions surrounding sexual violence are slowly eroding. Though members of the public remain misinformed about sexual violence, the myth of the violent rapist hiding in the alley is challenged regularly, forcing us to reconceptualize and redefine our standards surrounding rape.
Despite reasonable skepticism that changing cultural norms create tangible impact and enduring obstacles, preventing survivors of sexual assault from receiving the support and justice they deserve[2], we have seen moderate changes in our political and legal systems. In 2012, the FBI reformed its definition of rape for the first time in 8o years, changing language such as “carnal knowledge of a female” to reflect a more modern conception of what sexual violence is.[3]
The FBI is not the only institution responding to this evolution. After Professor Deborah Denno published a 2003 law review article arguing for reform of the Model Penal Code (MPC)[4], the American Law Institute (ALI), together with leading experts in the field, began a project to do just that.[5] Article 213 on Sexual Assault and Related Offenses was drafted in the 1950s and approved by the ALI in 1962; a time when rape was culturally perceived as a physically violent attack perpetrated by strangers against young, unsuspecting women. However, since 1962, society has learned more about sexual violence, and most argue that it is time for the law to reflect social norms that are beginning to conceive rape as the absence of consent in a sexual interaction, rather than one that requires resistance and physical force.
Arguments for Article 213 reform focus on various parts of the article, including the definition of consent, the discussion of force, and the requirement of resistance, but looking at the plain language of the article, it is clear that it also fails to define rape in its modern conception.
The article begins: “A male who has sexual intercourse with a female not his wife is guilty of rape if….” Without defining the crime, the MPC already defines the rapist as a male, and the victim as a female. Though there is still inadequate research on male victims and female perpetrators of sexual violence, we have learned enough to know that males can be victims and females can be perpetrators.[6] This is not only problematic to situations where sexual assault occurs between a male and a female, but it also ignores the incidences of sexual violence where both the victim and perpetrator are of the same sex, or where either is intersex or transgender. The 1962 version of the Article 213 would not punish these situations, which is a gap that leaves many victims without redress.[7] Beyond this, the first line of the Article 213 also fails to provide a remedy for victims of marital rape.
Article 213.1(a) continues: “he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone.” Again, this clause reinforces norms that conceive rape as an attack of physical force. [8] Continuing on, 213.1(b) reads: “he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance.” Though this addresses Drug Facilitated Sexual Assault where the victim is given drugs without her/his/their knowledge, it does not address sexual violence that occurs when a victim willfully partakes in intoxicants, such as drinking alcohol at a party. This gap is disturbing for many reasons, including that alcohol is the most common drug used in drug facilitated assaults and victims usually knowingly partake in alcohol.[9] It is also a problem because sexual assault on college campuses is a major problem[10], and it is no secret that college students drink alcohol. Under the current MPC standard, if a person knowingly drank alcohol and was sexual violated, s/he would not be able to allege rape without proving serious bodily injury or other serious physical injury.
Given the above analysis, which only covers the first three clauses of the article, it is clear that Article 213 requires reform.[11] However, though recognition that reform is necessary is obvious, specific changes are controversial. Some states, like California, are moving toward an affirmative consent standard, which requires people participating in sexual intercourse to receive affirmative consent from their sexual partners before and throughout the interaction.[12] Advocates for affirmative consent argue that it places responsibility on anyone engaging in sexual intercourse to ensure that they have consent, leaving little room for a rape defense based on misunderstanding. Proponents argue that the “no means no” standard is insufficient because many victims of sexual violence do not resist either physically or verbally because they often freeze due to fear.[13] An affirmative consent standard rejects the notion that victims must resist in order to deny consent, challenging the idea that people are sexually available unless they say otherwise. Lauded as a positive development by activists and advocates like Jessica Valenti,[14] legal experts tend to be a bit more skeptical of an affirmative consent legal standard.[15]
These critics argue that affirmative consent standards are biased and may be difficult to apply to complicated scenarios. Arguments center around the fact that most people do not explicitly discuss the terms of their sexual encounters, and affirmative consent would criminalize consensual sexual behavior.[16] Advocates believe this argument to be overly simplistic as affirmative consent standards do not criminalize behavior that is clearly consensual for both sides. Despite this, the intention of reforming Article 213 is to give victims higher access to justice, allowing sexual violence to be reported and punished. If the ALI settles on a definition that embraces affirmative consent without social buy-in, it takes the risk of creating larger, insurmountable barriers in the prosecution of perpetrators of sexual violence, making justice even more elusive to its victims.
As one can imagine, the debate about what consent looks like in a sexual encounter must be central to the ALI’s project to reform Article 213. The public does not agree on whether the law should define consent explicitly, or rather define when consent is given and when it is not, and a room full of ALI experts are not immune from these disagreements. However, when cultural conversations enter a room full of lawyers, the disagreements often multiply. Along with defining consent, the question of who has the burden to prove consent in courts is also highly debated. Currently, the prosecution has the burden of proving lack of consent, but many argue that the accused should have the burden of establishing consent where sexual violence is alleged.
Rebecca O’Connor, the Vice President for Public Policy of the Rape, Abuse & Incest National Network[17], who is a liaison to the ALI’s working group[18] for Article 213 Reform, noted, “This is a complicated and critically important conversation. Creating a forward-thinking policy that will align with both today’s and tomorrow’s societal norms is no easy task and great care and consideration is going into these discussions.”[19]
As society continues to have conversations about what it means to consent to sexual activity, and what it means for that consent to be violated, our social norms surrounding sexual violence shift, slowly but surely. However, the current moment is one of debate and discomfort and our penal codes reflect this tension. In the end, we are left with little more than questions: should laws influence our behavior by setting standards to which we should aspire to? Should behavior dictate the lines which our laws draw for us? Ultimately, even if society reaches a point where an affirmative consent standard for sexual violence is commonly accepted, how do our institutions reflect social policy in the law in a way that endures?
[1] Emily Bazelon, Have We Learned Anything From the Columbia Rape Case?, N.Y. Times (May 29, 2015), https://www.nytimes.com/2015/05/29/magazine/have-we-learned-anything-from-the-columbia-rape-case.html?_r=0.
[2] Alessandra Carozza, Gender-bias and the Challenges of Effectively Defining, Investigating and Prosecuting Sexual Assault, J. Gender Soc. Pol’y & the Law Blog, (Oct. 13, 2015), https://amunlawreview.wpengine.com/blog-post-43-gender-bias-and-the-challenges-of-effectively-defining-investigating-and-prosecuting-sexual-assault/.
[3] Gina Simmons, The FBI Redefines Rape, And Why it Matters, Forbes Magazine Online, (Jan. 18, 2012, 11:17 PM), https://www.forbes.com/sites/crime/2012/01/18/the-fbi-redefines-rape-and-why-it-matters/.
[4] Deborah W. Denno, Why the Model Penal Code’s Sexual Offense Provisions Should Be Pulled and Replaced, 1 Ohio St. J. Crim. L. 207 (2003).
[5] Am. Law Inst., Sexual Assault and Related Offenses Project, https://www.ali.org/projects/show/sexual-assault-and-related-offenses/#_status (last visited Oct. 21, 2015).
agreeing on how the MPC should define rapechanging social norms: , the disagreements often multiply. not strictly d on ” s/he
[6] Hanna Rosin, When Men Are Raped, Slate Magazine (April 29, 2014, 12:54 PM), https://www.slate.com/articles/double_x/doublex/2014/04/male_rape_in_america_a_new_study_reveals_that_men_are_sexually_assaulted.html.
[7] (While the definition, on its face, excludes certain types of violence because of gender/sexual identity, we do know that states customize this and other aspects of the code to be more expansive and to apply to other circumstances).
[8] Mary Adkins, The Misguided Definition of Rape as ‘Force’, The Atlantic (May 21, 2014), https://www.theatlantic.com/health/archive/2014/05/the-misguided-definition-of-rape-as-force/370954/.
[9] Jessica Bliss, Police, experts: Alcohol most common in sexual assaults, USA Today (October 28, 2013), https://www.usatoday.com/story/news/nation/2013/10/28/alcohol-most-common-drug-in-sexual-assaults/3285139/.
[10] David Lisak and Paul M. Miller, Repeat Rape and Multiple Offending Among Undetected Rapists, 17 Violence and Victims 73, (2002) (discussing the use of alcohol in campus sexual assaults).
[11] Model Penal Code § 213.0-213.11 (Am. Law Inst. 1962).
[12] Bill Chapel, California Enacts ‘Yes Means Yes’ Law, Defining Sexual Consent, NPR Online, (Sept. 29, 2014, 12:27 PM), https://www.npr.org/sections/thetwo-way/2014/09/29/352482932/california-enacts-yes-means-yes-law-defining-sexual-consent.agreeing on how the MPC should define rapechanging social norms: , the disagreements often multiply. not strictly d on ” s/he
[13] James W. Hopper, Why many rape victims don’t fight or yell, Washington Post Online, (June 23, 2015), https://www.washingtonpost.com/news/grade-point/wp/2015/06/23/why-many-rape-victims-dont-fight-or-yell/.
[14] Jessica Valenti, ‘Yes means yes’ laws will not actually reclassify all sex at universities as rape, The Guardian, (Oct. 7, 2014, 7:51 AM), https://www.theguardian.com/commentisfree/2014/oct/07/yes-means-yes-sex-rape-universities.
[15] Judith Schulevitz, Regulating Sex, N.Y. Times, (June 27, 2015), https://www.nytimes.com/2015/06/28/opinion/sunday/judith-shulevitz-regulating-sex.html.
[16] Jonathan Chait, California’s Radical College-Sex-Law Experiment, N.Y. Magazine, (Oct. 6, 2014, 9:05 AM), https://nymag.com/daily/intelligencer/2014/10/californias-radical-college-sex-law-experiment.html.
[17] Rape, Abuse & Incest National Network, https://www.rainn.org/ (last visited Oct. 21, 2015).
[18] Am. Law Inst., Sexual Assault and Related Offenses Project Participants, https://www.ali.org/projects/show/sexual-assault-and-related-offenses/#_participants (last visited Oct. 21, 2015).
[19] Interview with Rebecca O’Connor, Vice President for Pubic Policy, Rape, Abuse & Incest National Network, in Washington, DC. (Oct. 16, 2015).