Affirmative Consent and Burden Shifting, Take 4

In my last post, I argued that affirmative consent switches the burden of proof at least some of the time. I also asserted that affirmative consent allows a person to be found guilty of rape for having sex with a fully consenting adult. In a follow-up comment, I pointed out that a person could be found responsible for rape even if his paramour had affirmatively consented.

The scenario looks like this: A wakes up and sees her roommate B having vaginal sex with Accused. Ever the voyeur, A observes them for some twenty minutes before falling back asleep. A observes nothing to make her think that B doesn't want to be having sex with Accused, but never does A hear B tell Accused that she wants him to penetrate her. Nor does A ever see B doing anything that clearly conveys she wants him to do so. (Unbeknownst to A, B had whispered to Accused right before A woke up that she wanted to have sex with him.) The next morning A reports that B has been raped.

Depending on how affirmative consent is defined and interpreted, Accused could be found guilty. California, for instance, explicitly states that affirmative consent must be ongoing, but what does that mean?  Does affirmative consent exist unless and until B revokes it, or must B continue to affirmatively consent (as opposed to consent) during the entire sexual encounter?  Under the latter definition, B's initial consent even though never revoked seems to be legally insufficient. 

SUNY says that “Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.” How do we define sexual act, and what is the line between a prior and a current sexual activity? In California, for instance, the jury instruction given in rape trials states "Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required." Applying affirmative consent to that definition would seem to require B to affirmatively consent to each penetration.

Some might ask whether such a situation could ever happen in the first place.  How could the state proceed with A as the only witness? Wouldn’t there be some sort of hearsay problem? Universities explicitly allow hearsay evidence in campus disciplinary proceedings involving allegations of rape and sexual assault. Even if hearsay were barred, A’s testimony would still be admissible. A could prove that B didn’t affirmatively consent by describing B’s nonverbal conduct. Unless B was intending to convey an assertion through her conduct, it wouldn’t constitute a statement at all. Nor would there be an obstacle to A introducing statements B made during the encounter. The Federal Rules of Evidence have hearsay exceptions for present sense impressions, excited utterances, and then existing states of mind.

But what about the confrontation clause revolution heralded by Crawford v Washington (2004)? That won’t help Accused either. Only defendants in criminal cases have 6^th Amendment rights, and even if this were a criminal prosecution, the statements would still be admissible as non-testimonial.

At this point, some of you may throw up your hands and accuse me of being trapped in my ivory tower. “This is mere academic jiggery pokery,” you exclaim. “The state would never do such a thing. They would never file rape charges when the purported victim insists that she wasn’t a victim at all!”

Perhaps, but I for one don’t want to rely on the good sense of a prosecutor to restrain himself from misusing an ambiguous law. If the law has problems we should fix them now. 

 

(This post has been revised after the helpful comments of many people.)