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Behind the Scenes of the Legal Group That Could Change America’s Definition of Sexual Consent

Illustration by Taylor Lewis

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Next week, on October 24th, some of America's finest legal minds will gather in New York to debate the draft of a law defining sexual assault and determining how severely it should be punished. The debate has taken place almost entirely out of the public eye, and though this group—who are all members of an organization called the American Law Institute (ALI)—are not working for any government, the law they produce could serve as a model for courts and state legislatures for decades.

Not many people have heard of the American Law Institute. But for over half a century, it has been one of the most influential forces shaping US law. In 1962 it produced the Model Penal Code, a comprehensive system of laws that was meant to reflect the view of the nation's best legal thinking on what an ideal criminal code should look like. Since its appearance, nearly every state has used its provisions as guides in reforming at least some aspects of its criminal law, and the code has been cited in thousands of court decisions.

The Code has generally aged well—with one notable exception. In Article 213, the Code defines rape as a crime involving a man having intercourse with a woman other than his wife, either through the use of force or of "the threat of imminent death, serious bodily harm, extreme pain or kidnapping."

No one in the legal community now thinks this captures all cases of sexual assault, and for the past four years the Institute has been working to produce a new model law, one that would criminalize non-consensual sex in cases where neither force nor explicit threats were used. As a distinguished attorney who has been involved with the ALI for many years told me: "The Model Penal Code was enormously influential in its day; a lot of states adopted it. Now everybody's looking to the Institute to provide the framework for treating conduct that is newly regarded as criminal." (Like several others interviewed for this story, the attorney asked to remain anonymous out of respect for the integrity of the ongoing ALI process, which few people want to be seen as publicly criticizing.)

But so far, ALI members have been unable to agree on the precise form the new law should take, and debates that have ensued have been among the most heated in the ALI's history—disagreements that cut to the heart of our society's ongoing dialogue about what it means to consent to sex.

The ALI gave two law professors, Stephen Schulhofer and Erin Murphy, both from New York University, the task of drafting the new model law. As is standard ALI practice, their drafts have been subject to repeated scrutiny both by a committee of experts and by the ALI's membership as a whole, which is made up of several thousand judges, lawyers and academics. Both Schulhofer and Murphy are distinguished scholars with extensive publication records, and both are well-liked among the wider legal community. But the two "reporters", as the ALI calls its drafters, have been accused by an influential group of ALI members of pushing too far, too fast in trying to change the way America views non-consensual sex.

Members have clashed over three aspects of the model law: first, how consent should be defined; second, what counts as sexual penetration; and third, how seriously non-consensual sex (in the absence of force or threats) should be punished.

Debate thus far has focused on the definition of consent. Schulhofer and Murphy initially proposed that the model law establish an "affirmative consent" standard: if the non-initiating partner did not actually say yes, then the initiator could be charged with assault. This standard was rejected by a vote at the ALI's annual meeting this past May. After a lively debate, members were convinced by those who argued that an affirmative consent standard gave prosecutors too much power, and risked criminalizing behavior the public does not see as deserving of prison.

A new formulation, proposed by a group of seven dissenters, was adopted. Named the Love Amendment after one of its authors, Margaret Love, it replaced affirmative consent with "contextual consent"—a phrase that is entirely new in legal contexts, and one whose exact meaning is vague. In essence, it says that to determine if consent was given, one needs to look at the total circumstances of the encounter in question, including nonverbal behavior and the partners' shared history.

When the ALI publishes a model law, it also includes commentary by the reporters explaining what the terms of the proposed law mean. This becomes particularly important when the model law uses entirely novel legal terms such as "contextual consent." Following the vote in May, the reporters have incorporated the contextual consent standard into the "black letter" of the model law itself. However, members of the dissenting group told me they believe that the reporters have, in the commentary they have prepared since the May meeting, defined contextual consent in such a way as to leave it indistinguishable from the reporters' own preferred standard, affirmative consent.

These critics allege that this is only the latest case of the reporters trying to re-introduce a stricter standard of consent than the ALI membership is prepared to accept. "ALI critics of the sexual assault proposal could not be faulted for feeling as if they are in a game of Whack-a-Mole," wrote Kevin Cole, a law professor at the University of California, San Diego, in a paper earlier this year. He was referencing the fact that each time ALI members have voted to remove the affirmative consent standard from the model law, the reporters have allegedly tried to re-introduce it through some other channel. Cole's comment was cited in an open letter sent to ALI's membership in advance of this past May's meeting, and was signed by nearly a hundred high-profile dissenting ALI members, including former Solicitor General Charles Fried. The letter suggests that the reporters have failed to follow "the method of deliberative advancement of the law on which the ALI prides itself and upon which the ALI built its reputation."

While discussion at next week's meeting will center around the reporters' commentary on the definition of consent, other battles are looming: The dissenting group feels that the reporters have also crafted an overly-strict definition of penetration, one that would, as the open letter says, criminalize "wedgies" and other behavior that many people consider not to be sexual. The reporters also want all non-consensual sex punished as a felony, whereas dissenters want at least some cases graded as a misdemeanour.

The dissenting group are motivated by general concerns about over-criminalization—the feeling that our country places too many people in prison, gives too much power to prosecutors, and imposes too many collateral consequences, such as lifetime registration and the loss of voting rights, on convicted felons, and sex offenders in particular. Professor Murphy said in an interview she is sympathetic to these concerns, but points out that conviction rates for sexual assault are in fact incredibly low, and so it is hard to blame sexual assault prosecutions for our overflowing prisons.

But dissenters also feel that the reporters are trying to use the model law to, as the open letter puts it, "impose new social norms", rather than work to make our existing laws more coherent and fair, which they see as the ALI's core mission. Professor Schulhofer has made no secret of his view that society does not take sexual assault seriously enough, and that reform of the laws can help drive a shift in attitudes. He wrote in a 2005 paper that reforming rape laws can become a potential tool for "changing the ways that men treat women and the ways that men view sex in our society."

At stake in the dispute are two fundamentally different visions of the role law should play in society. The case of gay rights, where court victories helped drive a profound shift in public opinion, shows that the law can indeed have a profound effect on social values. But many feel it should not be the job of lawyers and judges to drive social change—that they should instead take a more deferential attitude towards public opinion, restricting themselves to, in the words of the open letter, "punish violations of existing norms." However, our current, lax attitudes towards non-consensual sex, though they are evolving quickly, leave women vulnerable by making assault convictions difficult to obtain. The reporters might argue, as Professor Schulhofer has in his published work, that people's basic rights to autonomy and personal security are threatened by the current state of affairs. And there is no value more fundamental to American culture, or to the work of its laws, than the protection of such basic rights.

This dispute will not be resolved next week. The issue will be taken up again at the ALI general meeting next May, and the work of revising article 213 will very likely continue for several years. The outcome of this process will shape America's sexual assault laws for decades to come.

Neil McArthur is the director of the Centre for Professional and Applied Ethics at University of Manitoba, where his work focuses on sexual ethics and the philosophy of sexuality. Follow him on Twitter.