RAPE PROSECUTIONS, CONTRIBUTORY NEGLIGENCE, AND AFFIRMATIVE CONSENT

Josh and Eva are college sophomores who have been dating seriously for 9 months. They enjoy many sexual activities together, but neither wants to risk pregnancy or abortion. Both decided to wait until marriage before engaging in sexual intercourse.

One night while performing mutual oral sex Josh began pressuring Eva. Come on! Let’s do it! He said. You love me, don’t you? I really want to be inside you!

STOP! Eva replied. We’ve already talked about this. NO intercourse before marriage.

A fight ensued. Despite her screaming and resistance, Josh raped Eva nonetheless.

Shocked and devastated, Eva reported the crime to the police later that evening. Josh was arrested shortly thereafter.

Josh’s attorney, a middle-aged woman, posed two questions to the jury. Can you blame a man for believing that he had the green light to sexual intercourse when his partner is naked and engaging in mutual oral sex? What exactly is a man, all fired up and ready to go, supposed to think?

Even if most jurors believed that Josh was guilty of rape, would some jurors, men and women who were born in the 1940s and 1950s for instance, perceive Eva as negligent? Did she assume some of the risk, they might ask, by engaging in mutual oral sex?

These questions are significant. Juror bias in the interpretation of the facts surrounding a rape is ultimately more pernicious to alleged victims than juror bias about past sexual behavior. Statutory language prevents defendants from introducing evidence about a victim’s history or reputation, but the facts surrounding the rape itself are another matter entirely, whereby consent is the central issue therein.

If the victim of a crime, or an injured plaintiff, failed to act prudently, that failure is often assumed to have contributed to the outcome. This was especially evident, historically at least, in the prosecution of rape. Jurors would routinely rely upon an assumption of risk that was based upon a victim’s past sexual behavior. It was her fault, at least partially so, because she behaved the way she did.

Though jurors continue to incorporate non-evidentiary characteristics into their decision-making, rape shield laws now disqualify extraneous evidence that is inimical to alleged rape victims. That fact notwithstanding, our question still remains. Does pervasive bias exist when jurors evaluate evidence related to consent?

Affirmative consent means that both partners in a sexual encounter must affirmatively consent to each and every step prior to engaging in any sexual act. Only yes means yes, so to speak.

Think of a sexual encounter as a ladder where each step represents a sexual behavior. Every step, née behavior, would then need affirmative consent prior to stepping on it. Without explicit consent, it’s sexual assault. There’s no fast-forwarding where affirmative consent is concerned.

Rapists and sexual assaulting men have harmed so many women (and men) under the guise of consensual sex that affirmative consent is the necessary corrective. Keep in mind that a large percentage of sexual assaults come from sexual partners known to the victim.

As a practical matter, judges and attorneys can of course voir dire prospective jurors on affirmative consent during jury selection. Questionnaires designed for this specific purpose are ideal and will help increase awareness and acceptance for affirmative consent itself.

Unfortunately only a handful of states currently have laws enforcing affirmative consent. Until these laws become mandatory throughout the United States, and are supplemented by instruction in schools, and widely publicized in news outlets, rapists will continue to avoid convictions, needlessly extending the protracted suffering of victims.

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Tania L. Abramson, MFA