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Vanderbilt Law Review

First Page

1321

Abstract

2003 saw the arrest of the star basketball player Kobe Bryant on charges of forcing a woman to have sex with him, charges that were dropped in 2004. This arrest is perhaps the most prominent in what has become a sordid procession of public shame: the charging of professional athletes with crimes of sexual assault. As is common in rape charges, neither party denies that the sex took place. Instead the argument is based on whether the woman consented to it. In the apology Bryant issued that led to the dismissal of the charges, he admits that "[a]lthough I truly believe this encounter between us was consensual, I recognize now that she did not." Central to the consideration of consent has been the much- affirmed concept that "no means no." In short, the standard means that, if an individual verbally rejects sexual advances, that person must be seen as withdrawing consent to sexual contact. "No means no" has been a rallying cry for the on-campus feminist movement. Despite its utter simplicity and apparent reasonableness, supporters of "no means no" are still having to make their case on a daily basis, and apparently many still believe that a woman's outright verbal rejection of sexual advances does not, in and of itself, create a case of rape against a man who engages in sexual intercourse with the woman. For example, columnist Gregg Easterbrook, examining the Kobe Bryant case, opines that "the reality of human interaction is that 'no' does not always mean no. Maybe half the sex in world history has followed an initial 'no.' " Such opinions base themselves not infrequently on the findings of surveys such as that done in 1988 at Texas A&M University. This survey found that 39.3 percent of the female undergraduates surveyed sometimes said no, although they "had every intention to and were willing to engage in sexual intercourse." Although this and other studies showed that "no" does mean "no" for most women, some interpreting these results cite them as evidence that the word "no" confuses some men. The "no means no" standard, despite its apparent simplicity, is under attack by those who claim that it is simply not true-that in many dating cases "no" may not actually mean no. The intent of this Note is not to present such attacks as persuasive; they are not and were refuted in the 1998 Texas A&M University study, Muelenhard and Hollabough's original work. They are still made, however, and these arguments show how the "no means no" movement has failed to establish itself as the common sense position it portrays itself as. That debate still exists about whether a woman has been raped, when she has explicitly stated that she does not wish to engage in sexual intercourse but was ignored by her partner, who proceeded to have sex with her, is a sign of the failure of "no means no" to come into the mainstream. More importantly, court decisions acquitting men of rape where there is no doubt that the woman has indeed said no to sexual intercourse indicate that "no means no" is far from being the accepted legal standard. The purpose of this Note, then, is to address the present situation regarding the law of rape in the United States and to advance the view that only a standard of affirmative consent can effectively grant women control over their participation in sexual encounters. The Note justifies the affirmative consent standard by looking at its effect on the behavior of men and women and on -society at large. Far from creating a license for the vindictive behavior of a "woman scorned" as suggested by some commentators, a requirement to obtain the affirmative consent of a prospective sexual partner acts as a protective barrier (or prophylaxis) against future unfounded claims of rape. It contends that the introduction of an affirmative consent standard would not only incentivize rational behavior on the part of both women and men in dating situations but that such a shift in the law would potentially shift public perceptions of women and their role in sexual relationships. Finally, this Note considers the primary criticisms leveled at the affirmative consent standard. An affirmative consent standard will not destroy intimacy and romance as many fear. Such a requirement is already the norm in some less traditional forms of sexuality, such as sadomasochism, and may be defended as a path to greater closeness between partners in all forms of sexual relationships. Finally, affirmative consent standards are subject to attack from some more radical feminists, who argue that no consent to sex can ever be seen as genuine in a male dominated world. Section II attempts to define rape as it will be discussed in this Note. It starts with the traditional view of the crime of rape and briefly discusses the historical development of the crime, looking in particular at how that development has colored present attitudes towards consent standards. It then turns to what is the hidden majority of rape cases-"date" or "acquaintance rape." Section III looks to the present laws of three states and discusses cases from them that demonstrate the effects of different consent standards.16 Section TV considers how an affirmative consent standard would be justified, and how it would affect the behavior of men and women on an ongoing basis, as well as the effect such a standard would have on society. Finally, Section V addresses the most prevalent criticisms, both scholarly and popular, leveled at affirmative consent, and concludes that they are either invalid or insufficient to outweigh the benefits to all participants of such a standard.

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