« Elizabeth Garrett | Main | Serial 2:7-8 »

Tuesday, March 08, 2016

Affirmative Consent and Interpreting Signals

In my previous post, I argued that “affirmative consent” does not mean “unambiguous consent” (except for the few policies that contain words like “unambiguous” or “clear”).  If affirmative consent does not require clear, unambiguous consent, then what does it require?

Definitions of “affirmative” include the following:  “saying or showing that the answer is ‘yes’ rather than ‘no,’” and “involving or requiring effort.”  In this context, “affirmative” seems to require that there be some positive signal of agreement.  Agreement cannot be inferred solely from passivity or silence.

This is at most a very minor alteration in existing consent standards, and it does not help to solve the real and serious problems of determining when consent has been given and when it has not.

In some of the most difficult rape cases, the debate between the parties is about at least two things:  (1) who said and did what, and (2) what those words and actions meant.  The first is a problem for the jury in deciphering the evidence (and the affirmative consent standard does not change this determination or make it any easier).  The second is the issue I want to focus on.

In difficult rape cases, the parties often disagree about the meaning—both in isolation and in combination—of various words and/or conduct by the parties.  I’ll call these “signals.”  The problem is determining the meaning of a given signal, or set of signals, in a particular social context.

An “affirmative consent” standard requires that there be a signal—thus the total absence of a signal cannot constitute affirmative consent.  But in the vast majority of disputed rape cases, the defendant does not argue that because the complainant did nothing, she consented.  Defendants do sometimes invoke a complainant’s silence or passivity, but almost always do so in combination with some words or conduct that, taken together, are claimed to signal agreement to sex.

The defendant argues that complainant did A, B, and C, and that those signals indicated that she was agreeing to sex.  The complainant, in turn, might argue that A, B, and C did not signal consent.

The parties are not disagreeing about whether consent needs to be “affirmative”—about whether some signal of consent was sent.  Rather, they disagree about what the signals mean (or whether they were in fact signals of consent in the first place).

Thus “affirmative consent”—requiring the presence of some signal of agreement, as opposed to mere passivity or silence—does not resolve the real problem in rape cases.  That problem is determining the meaning of the words and conduct of the two parties, not in determining whether “a signal” was sent.  Thus the reform of “affirmative consent” is not a substantial change in existing consent standards, and does not do much, if anything, to resolve the real, difficult problem of determining consent in rape and sexual assault cases.

Posted by Jonathan Witmer-Rich on March 8, 2016 at 09:47 AM | Permalink


The comments to this entry are closed.