Contents

Part I: The Gap Between Current Rape Law and a Rape Law Based on Affirmative Verbal Consent...2

The Prima Facie Case..........................................................................................................................2

The Non-Consent Element...............................................................................................................2

The Force Element...........................................................................................................................3

The Defences – the requirement that consent be stated verbally.........................................................4

Mens Rea and Culpability................................................................................................................6

Part II: A Standard Based on Verbal Consent.........................................................................................7

A. Clarity..........................................................................................................................................7

B. Prescription rather than description.............................................................................................8

C. Intimacy.......................................................................................................................................8
Read Her Lips: An Argument for a
Verbal Consent Standard in Rape
Lani Anne Remick

 Lack of laws which tackle rapes with elements of consent – the problem is that the
majority of the laws on rape only consider violent stranger rape and does not
proscribe any criteria for less violent rapes.
 Main theme of the article: Change in the law of rape to bring instances of non-
traditional rape within the boundaries of criminal law.
 Proposed the idea of affirmative verbal consent as opposed to the existing
requirement of affirmative nonconsent – the lack of yes or its verbal equivalent raises
a presumption of non-consent – this proposal respects the idea of a woman’s right to
sexual autonomy as absolute.

Part I: The Gap Between Current Rape Law and a Rape Law
Based on Affirmative Verbal Consent
4 elements of a prima facie case of rape:

1. Sexual activity
2. Use of force or threat of force by the defendant as a means of obtaining the sexual
activity
3. Non-consent of victim
4. Mens rea – defences raised are consent and mistake of fact as to consent – needs to
be a rejection of this element (inconsistent with rape law founded on verbal
consent)
The Prima Facie Case

The Non-Consent Element

 Presumption of consent coupled with the judicial interpretation of the nonconsent
element becomes problematic
 Judicial interpretation – the burden of proving nonconsent is not satisfied by
showing a lack of affirmative consent; instead, affirmative nonconsent must be
proven
- This means that the prosecution needs to show that the victim actively
protested against the accused and it is not sufficient that the prosecution
merely shows that the victim had not given verbal consent.
 It is only in rape law that showing lack of consent is insufficient.
- If a woman lays still and does not move, then the presumption is of consent
and not that of nonconsent
 This sort of interpretation makes sexual encounters a sort of contractual event
where a vigorous act of refusal is required for proving her lack of consent – no
absolute right to control sexual access to her body.
- Suggests that a woman’s freedom from non-consensual sex isa privilege
rather than a right.
- Also suggests that a woman who fails to reject advances has caused her own
rape.
- Leads to the notion of justifiable rape – women being disposable objects if
they do something to provoke their attackers or fail to discourage their
attacker.
 Another consequence of this interpretation is that victims are forced to choose
between serious harm or death (upon affirmative nonconsent) and unsuccessful
prosecution as a consequence of submitting to the attackers.
 A presumption of nonconsent shows that a person wishing to engage in sexual
activity has a duty to ascertain that person’s consent before proceeding.
 Thus, a shift is required towards proof of lack of consent being sufficient to
prove nonconsent.
- Ways to do this – statutory reform and policy-guided judicial
interpretation (look at the intention of the legislature)
The Force Element
 Sexual activity without the consent of the woman may not be considered rape if the
defendant did not exercise force.
 In order to bring in the reform of affirmative verbal consent, it is essential to
eliminate the requirement of force from rape law.
 Commonwealth v. Berkowitz – implications of force requirement – though there was
clear lack of consent, the victim’s testimony as to the physical encounters was
insufficient for proving force.
 The force requirement limits the right of a woman over her body to only those
situations where her partner starts using force.
 Even in theft, though use by force makes it a more grievous offence, the lack of
force does not lead to acquittal of the accused.
- Usually, lack of force only leads in conviction with a lesser crime.
 Secondly, absence of force does not indicate the accused’s willingness to use
force – only shows that no force was required to overcome the victim.
 Judicial solution – physical force in excess of that involved in the act of sexual
penetration is not required for such penetration to be unlawful – partly based on the
standards of battery and assault.

Solutions to the problem of consent and force:

1. Only overt behaviour should be construed as consent.

2. Force should not be considered to be an indispensable element of rape but only an
aggravating one – for determining the degree of the crime and the severity of the
punishment.

The Defences – the requirement that consent be stated verbally

 The suggested standard is that of affirmative defense – a man is given the
opportunity to show that his partner consented to the sexual activity even though
explicit verbal consent was never given.
- This is because a standard of verbal consent with no context is over-inclusive –
there may be instances of sexual activity being consensual despite the woman’s
failure to indicate her consent verbally.
 An inference of consent may even arise in those cases where there are verbal
instances of nonconsent because the current law provides for inferring consent from
her nonverbal behaviour and actions.
 There is no correlation between the actions of a woman that indicate consent and the
actions that are deemed by society to be consent – so a woman cannot even merely
refrain from performing those acts indicating consent since there is no correlation.
 Jurors find ‘implied’ consent in the sexual and nonsexual characteristics of a woman
– promiscuity, flirting, accepting dates, letting a man drive her home etc.
 This is because of the assumption that a sexually experienced woman is more likely
to consent to sex.
 The question sought to be answered should be: Whether the complainant gave
consent to a particular sexual activity with a particular man on a particular
occasion?
- Many of the behaviours construed to be ‘implied’ consent have meanings
wholly unrelated to sex.
- Even if the behaviours do relate to consent, it is only with one particular man,
or at least not to the alleged rapist.
- Behaviours meant to invite sexual activity on one occasion are not meant to do
so in another.
 The burden of sexual misunderstandings is on the female and it results in a
categorical denial of self-determination.
 Verbal consent, on the other hand, would result in a near-perfect correlation between
legal and actual indications of consent – maximum autonomy for women.
 Current rape law suggests that certain behaviours of women invite rape – victim
precipitation model.
 Because a purely verbal consent standard is overinclusive, the prosecution should
aim to prove:
1. Sexual activity
2. Absence of verbal consent – proof of this raises an irrebuttable
presumption of nonconsent – defendant then has the burden to prove that
there was consent of the victim through nonverbal sign – actual consent
to be proved beyond reasonable doubt.
  Shifting the burden severely limits the usefulness of behavioral evidence which in
turn limits its negative impact on thew women’s freedom.
 Also conveys the message that the man has the responsibility to make sure the
partner consented.

Mens Rea and Culpability

 A and B constructed a standard of affirmative verbal consent – C aims to address
why those who do not adhere to this standard should be held criminally culpable.
 Reasonable belief in consent defense – accused is not arguing that non-consensual
sex did not occur but is arguing that his belief in consent was reasonable though
erroneous – women to bear the risk of men’s mistakes
 The author argues that the law strikes an improper balance between the harm that
occurs when a woman is subjected to non-consensual sex and the harm that occurs
when a man is punished for an offence that society considers reasonable.
- The current definition of reasonable fails to consider the ease with which such
misunderstandings as to consent may be avoided simply through a verbal
inquiry.
 Nonverbal consent is unreasonable and men have an affirmative duty of inquiry.
 Protection of a woman’s sexual autonomy is more important that protection of a
man’s freedom not to trouble himself with inquiring as to his partner’s consent.
- This is because the logic behind excusing mistakes in criminal law is primarily
because the person making the mistake is not responsible for the situation
in which the mistake was made.
- However, this should not be applicable to rape cases because the man himself
has exercised the choice to participate in a sexual encounter and he has
created the possibility of making a mistake by not verbally inquiring about
consent.
- Further, in the self-defence example, it is not possible to simply walk away
without inflicting that injury- in rape cases, the only loss to the man is the loss
of sexual pleasure – Jeremy Horder
 Celia Wells – objective approach – “should the accused have known that the victim
was not consenting?” instead of “did the accused know that the victim was not
consenting?”
  On comparing the magnitude of the harm avoided and the difficulty involved in its
avoidance, the imposition of a duty of verbal inquiry is justified – Toni Pickard
- Considering the ease of avoidance compared to the harm of non-avoidance, the
behaviour of a man who fails to ask for verbal consent indicates a clear lack of
respect for his partner’s right to sexual and bodily integrity – makes him
culpable.
 From the lens of liberty – the point of limiting a man’s liberty is to increase a
woman’s liberty to behave however she wants without waiving her right to protection
under rape law.
 Punishment of those who fail to obtain verbal consent from their partners is to
be viewed as the condemnation of a selfish act.

Part II: A Standard Based on Verbal Consent

Two major problems of the current rape law:

1. No clear line between consensual sex and rape

2. Reflects the sexually coercive nature of the society rather than insisting about sexual
autonomy for women.

A. Clarity – puts potential perpetrators on notice and informs potential victims of their
rights
 The problem with the current rape law is that there is a fear of innocent men being
convicted in the larger interest of protecting women – this is because the law fails
to provide adequate notice of what sort of behaviour is prohibited.
 There is a need for a legitimate and effective criminal law which is able to draw a
clear division between criminal and noncriminal conduct so that men may
conduct themselves appropriately and decisionmakers my render verdicts with a
clear conscience.
 There is also the issue of victims themselves being reluctant to classify the non-
traditional forms of rape as rape – it is still hard for them to believe that they are
entitled to be free from violations of their sexual wishes – the proposed standard
for rape law says that any violation of the victim’s right to sexual autonomy,
 and not just physically forced sex, is a violation of the victim’s right to sexual
autonomy.
 The proposed standard is also good because it increases the instances of
prosecution in cases of non-traditional rape.
 The proposed standard thus sends a clear message to the society, both potential
perpetrators as well as decisionmakers, as to the distinction between consensual
sex and rape.

B. Prescription rather than description – prescribes proper respect for female

sexual autonomy instead of simply mirroring a sexually coercive society.
 The proposed standard is based upon the vision of equality in sexual interaction.
 Because of the values taught to boys and girls from a very young age (boys taught
to be tough and strong and girls taught to be reluctant in sexual activity and
submissive), when they grow up, their understanding of a sexual interaction is
fundamentally flawed.
 Men and women are socialized to accept coercive sexuality as the norm in sexual
behaviour – women to be reluctant towards sexual activity and men to be coercive
and make them overcome this reluctance.
 Because of this, there is a notion in society that proper woman starts off by saying
“no” and then it is the job of the man to make it a “yes” y continuing his advances.
 Current rape law allows men to rely on nonverbal signals in the face of
conflicting verbal signals.
 Law takes a descriptive and not prescriptive approach – instead of prescribing
how sexual relations should be between equal partners, it merely enforces the
expectations created by the coercive sexual structure that exists.

C. Intimacy – affirmative verbal consent can actually enhance sexual intimacy instead of
ruining it.
 Society has the ill-informed notion of “sexual pleasure springing from wordless
exchanges” – affirmative verbal consent standard may pave the way to making sex
a purely contractual affair and move away from the emotional and passionate
aspects of it.
 In reality, informed, consensual, pleasurable sexual encounters are the result o
communication and not silence – verbal messages are the most likely to lead to
desirable sexual encounters.
 “Silence is sexy” notion also shares the underlying assumption that women enjoy
being raped.
 The woman’s silence being consistent with her sexual fulfilment paints the picture
that her partner is able to intuitively discern her sexual desires and needs –
invisibility of a woman’s choice of self-determination.
 In fact, rather than silence, communication may be a desirable componence of
mutually satisfactory intimate encounters.
 The proposed standard merely calls for the man to obtain his partner’s consent as
to whether or not that particular encounter is consensual.