FACULTY OF LAW

University of Lund

Sofia Gårdving

Consent in rape law – A comparison

of three models

Master thesis
30 credits

Ulrika Andersson

Human rights law/criminal law

Spring 2010
Contents
SUMMARY 1

SAMMANFATTNING 3

PREFACE 5

ABBREVIATIONS 6

1 INTRODUCTION 7
1.1 Background 7
1.2 Subject and purpose 7
1.3 Delimitations 8
1.4 Disposition, method and material 9

2 RAPE UNDER HUMAN RIGHTS LAW 11

3 CONSENT IN THE CONTEXT OF RAPE IN CRIMINAL LAW 14

3.1 Factual versus legal consent 14
3.2 Attitudinal versus expressive consent 18
3.3 Actual versus imputed consent 19
3.4 Relationships between conceptual pairs 20
3.5 Criticism against the use of consent in rape law 20

4 THE FOUNDATION FOR MY ANALYSIS – TWO COMPETING

INTERESTS 23
4.1 Protection of negative sexual autonomy 23
4.2 Rights of the accused 26

5 ANALYSING 3 CONSENT-BASED RAPE LEGISLATION

MODELS 28
5.1 The No Model 29
5.1.1 Sexual autonomy 29
5.1.2 Rights of the accused/legal security 33
5.1.3 Liability for negligence 35
5.2 The Yes Model 36
5.2.1 Sexual autonomy 36
5.2.2 Rights of the accused 43
5.2.3 Liability for negligence 45
 5.3 Attitudinal consent 46
5.3.1 Sexual autonomy 47
5.3.2 Rights of the accused 52

6 CONCLUSIONS 54
6.1 Previously drawn conclusions 54
6.2 Conclusions drawn when comparing models 55
6.2.1 Sexual autonomy 55
6.2.2 Rights of the accused 62

TABLE OF CASES 70
Summary
Rape violates international human rights law; global and regional human
rights mechanisms clearly establish this. There is an obligation on states to
investigate, prosecute and punish instances of rape. When it comes to
defining what rape is, which acts states are obliged to prosecute the
international mechanisms provide little guidance though. The European
Court of Human Rights provides the most instructive answer in this respect
when it in the case of M.C. v. Bulgaria describes consent as the dividing line
between legitimate and illegitimate behaviour and declares that states are
obliged to penalise any nonconsensual sexual act.

Prohibiting nonconsensual sexual acts is an imprecise obligation though as

consent itself is not a well-defined term of which courts, legal commentators
and people in general have a shared common understanding. Furthermore,
the term consent is used to mean different things. Even courts use the term
consent both to signify an empirical fact – someone chooses to engage in
sexual acts regardless of the reasons for doing so – and as a demarcation
between legal sex and illegal rape. Furthermore, there is disagreement about
whether consent (in the meaning empirical fact) is a mental state a person
experiences or an expression a person performs. Applying consent as either
mental state or expression has implications for the two opposing interests
rape legislation seeks to reconcile. Protection of negative sexual autonomy –
the right not to engage in or be subjected to sexual acts – which all modern
rape legislation aims to protect, and upholding the legal rights of the
accused of which the presumption of innocence is the most important.

Applying consent as an expression of verbal rejection has the virtue of

holding those who act in contradiction to another’s expressed choice liable.
Applying consent as an affirmative expression has the added advantage of
protecting passive victims. Those who are passive out of fear, to avoid
injury, or due to intoxication are protected. Applying consent as a mental
state appears deficient in comparison as it seems a man may proceed in the
face of negative signals in the hope that his victim chooses sex in her mind
(under conditions acceptable within the jurisdiction), and if she does, escape
liability. However, rules prohibiting attempts mean that a perpetrator is
liable for subjecting his victim to sexual acts he infers or ought to infer she
does not choose. If in fact the victim chooses sex in mind (under conditions
acceptable within the jurisdiction), the perpetrator is liable for the lesser
crime of attempted rape. If the victim does not choose sex in her mind or if
she chooses sex under conditions not acceptable within the jurisdiction, the
perpetrator is liable for rape.

Yet even though applying consent as expression or mental state has

somewhat different consequences for the protection of negative sexual
autonomy, what is more important for said protection is determining which
factors invalidate consent. This is of equal importance for the different

1
views of consent. A robust and extensive understanding of the factors that
vitiate consent ensures good protection of negative sexual autonomy as it
explains when a yes, the absence of a no or a mental state of choosing sex is
not a defence against rape liability.

Applying consent as either mental state or expression has implications for

the legal rights of the accused as well. Applying consent as an expression
appears preferable; as long as a man adheres to a woman’s words and
behaviour he does not incur rape liability (naturally provided the situation
does not involve another vitiating circumstance such as fraud). The
attitudinal view appears problematic since what is decisive is the victim’s
mental state, into which the defendant has no access. Yet, rules on mens rea
mean that a man is safe to trust a woman’s words and signals under an
attitudinal view as well. As long as the accused has no reason to assume
lack of consent, he is not liable. The difference in consequences for the
accused between the two views lies in the fact that the attitudinal view
provides a finer instrument for grading liability. The expressive view only
considers the defendant’s blameworthiness; when the defendant acts in
opposition to his victim’s expressed choice, he is liable for rape. Applying
consent as a mental state considers the defendant’s blameworthiness as well
but also considers the resulting harm. When the defendant acts in opposition
to his victim’s expressed choice but his victim chooses sex in her mind
under conditions acceptable within the jurisdiction, he is only liable for
attempted rape.

2
Sammanfattning
Våldtäkt kränker internationella mänskliga rättigheter; detta fastslår globala
och regionala MR-mekanismer tydligt. Stater har en skyldighet att utreda,
åtala och straffa våldtäktsfall. Men när det gäller att definiera vad våldtäkt
är, vilka gärningar stater är förpliktigade att beivra, erbjuder de
internationella mekanismerna knapp vägledning. Den europeiska domstolen
för mänskliga rättigheter tillhandahåller det mest informativa svaret i detta
avseende i fallet M.C. v. Bulgaria när domstolen beskriver samtycke som
skiljelinjen mellan lagligt och olagligt handlande samt förkunnar en
skyldighet för stater att straffbelägga sexuella handlingar som utförs utan
samtycke.

Kravet på stater att förbjuda sexuella handlingar utan samtycke innebär dock
en vag skyldighet eftersom samtycke i sig inte är en väldefinierad term vars
betydelse domstolar, doktrin och människor i allmänhet har en delad
förståelse av. Vidare används termen samtycke för att benämna olika saker.
Även domstolar använder termen samtycke både för att beteckna ett
empiriskt faktum – någon har valt att ägna sig åt sexuella handlingar oavsett
vad den bakomliggande orsaken är – samt för att beteckna en skiljelinje
mellan lagligt sex och olaglig våldtäkt. Därutöver råder det oenighet om
samtycke (i betydelsen empiriskt faktum) är ett mentalt tillstånd en person
upplever eller en handling hon utför. Att tillämpa samtycke som antingen
mental inställning eller handling har konsekvenser för de två motstående
intressen våldtäktslagstiftning ämnar tillgodose. Skydd för negativ sexuell
självbestämmanderätt – det vill säga rätten att inte delta i eller utsättas för
sexuella handlingar – det intresse all modern våldtäktslagstiftning säger sig
värna, samt att upprätthålla den tilltalades rättssäkerhet där
oskyldighetsprincipen är den viktigaste rättigheten.

Lagstiftningsmodeller som bygger på brist på samtycke och har krav på

verbalt motstånd har fördelen att hålla de personer som handlar tvärtemot en
annan människas uttryckta vilja till svars. Att se samtycke som en jakande
handling har en ytterligare fördel i och med att passiva offer skyddas. De
som är passiva utav rädsla, för att undvika skada, eller på grund av
berusning är skyddade. Att förstå samtycke som en mental inställning
framstår som bristfälligt i jämförelse eftersom det verkar som en man tillåts
fortsätta med sexuella handligar trots negativa signaler i förhoppning att
offret mentalt sett väljer att ha sex (under omständigheter som hennes
jurisdiktion tillåter) och om han har rätt, undgå ansvar. Emellertid innebär
reglerna som förbjuder brott på försöksnivå att den som utsätter en annan
för sexuella handlingar han borde inse är utan samtycke hålls till svars. Om
offret de facto väljer sex (under omständigheter jurisdiktionen tilllåter) hålls
förövaren endast till svars för försök till våldtäkt. Om offret i själva verket
inte väljer sex eller väljer sex under omständigheter som jurisdiktionen ej
tillåter, hålls förövaren istället till svars för våldtäkt.

3
Men även om förståelsen av samtycke som antingen handling eller mental
inställning har något olika konsekvenser för skyddet av negativ sexuell
självbestämmanderätt är det viktigare för att tillgodose detta skydd att
bestämma vilka faktorer som negerar samtycke. Detta är av lika stor
betydelse för de olika sätten att se på samtycke. En robust och grundlig
förståelse av de faktorer som negerar samtycke säkerställer ett bra skydd för
negativ sexuell självbestämmanderätt eftersom den förklarar när ett ja,
avsaknad av ett nej eller en mental inställning av att välja sex inte förtar
våldtäktsansvar.

Att tillämpa samtycke som antingen mental inställning eller handling har
även konsekvenser för den tilltalades rättssäkerhet. Att förstå samtycke som
en handling framstår som fördelaktigt; så länge mannen agerar i enlighet
med kvinnans ord och signaler ådrar han sig ej våldtäktsansvar (naturligtvis
under förutsättning att situationen inte innehåller andra samtyckesnegerande
omständigheter [Link]. bedrägeri). Samtycke som mental inställning kan
förefalla problematiskt eftersom det avgörande med detta sätt att se på
samtycke är offrets mentala inställning till handlingen, en inställning den
tilltalade ej har tillgång till. Emellertid innebär reglerna om mens rea att en
man kan lita till en kvinnas ord och handlingar när man tillämpar detta
synsätt också. När den tilltalade ej borde ha förstått att det saknades
samtycke hålls han ej till svars. Skillnaden i konsekvenser för den tilltalade
mellan de två sätten att se på samtycke ligger i att samtycke som mental
inställning tillhandahåller ett känsligare instrument för att utmäta ansvar.
Samtycke som handling tar endast hänsyn till den tilltalades straffvärdighet;
när han agerar tvärtemot sitt offers uttryckta vilja hålls han till svars för
våldtäkt. Att tillämpa samtycke som mental inställning tar också hänsyn till
den tilltalades straffvärdighet men väger också in den resulterande skadan.
När den tilltalade agerar tvärtemot sitt offers uttryckta vilja men hon likväl
mentalt väljer sex (under acceptabla omständigheter vad jurisdiktionen
beträffar), hålls han endast till svars för försök till våldtäkt.

4
Preface
Rape is a topic that has long held my interest; why it occurs, how it can be
prevented, what has historically been and what is currently the legal
response to such acts, and for that matter which acts amount to rape in
various state legislation and finally which acts should amount to rape. As
with all complex issues, investigation into this topic has often provided
more questions than answers. Yet by working on this thesis, I have gained a
better understanding of the complexity of rape as well as the concept of
consent and my interest in this topic has if anything increased.

I wish to express my gratitude to my supervisor Ulrika Andersson for her

valuable advice and feedback and for pushing me to finish this thesis. I also
wish to thank Christina Johnsson for encouragement and guidance.

I thank my parents for their love and support and finally, my deepest thanks
to Florian for listening and engaging in many conversations about this topic
and for all his love and patience.

5
Abbreviations
CAT Convention against torture and other cruel,
inhuman or degrading treatment or punishment
CEDAW Convention on the elimination of all forms of
discrimination against women
ECHR European convention of human rights
ECtHR European court of human rights
ICCPR International covenant on civil and political
rights
UN United Nations

6
1 Introduction
1.1 Background
In Sweden, a question frequently raised by women’s groups, politicians and
others is whether it would be better to base the Swedish rape law on consent
instead of as it is now, on a combination of coercion and exploitation. One
opinion often put forward is that legislation based on consent would better
protect against sexual violations, without further discussion of how to
construct such legislation or indeed recognition that it can take many
different forms. While working on this thesis I have realized that consent
needs to be thoroughly and well defined to protect sexual autonomy whereas
I before thought consent an already fairly robust and precise term in the
legal context. I initially intended to compare rape legislation based on force
and exploitation as is common in civil law European states with rape
legislation based on consent as is frequently used in common law states. My
realization of the variableness of the term consent led me instead to examine
different models of consent based rape legislation.

1.2 Subject and purpose

As a student of human rights and humanitarian law, I became interested in
rape as a human rights violation. Rape is a persistent and prevalent problem
in many states, this is true also for states not involved in armed conflict and
dedicated to ensuring equality between the sexes. Therefore, this thesis will
examine what international mechanisms and legal obligations of states exist
to protect civilians against rape by non-state actors, and do these clarify
how rape legislation should be modelled.

The definition of the crime of rape in various states consists of two

elements: first, specific sexual acts – usually vaginal, anal or oral
penetration – second, how these sexual acts came about. It is the second
element of the definition that separates lawful from unlawful behaviour 1 and
states focus either on the issue of consent or on a combination of force and
exploitation by the defendant. 2 It is this second element of the crime that I
will focus on and the use of consent as the delineator between non-criminal
sex and criminal rape.

1
Westen, Peter, Some common confusions about consent in rape cases, Ohio state journal
of criminal law vol.2, p. 334.
2
Great Britain and most common law (and common wealth) states such as Canada,
Australia, New Zeeland, South Africa and India apply consent-based rape legislation.
Leijonhufvud, Madeleine, Samtyckesutredningen, p. 54. Most civil law states on the other
hand apply a combination of force and exploitation by the defendant, See Case of M.C v.
Bulgaria, application no. 39272/98, paras. 91-97.

7
The purpose of this thesis is to get a better understanding of consent in the
context of rape in criminal law and to examine the different conceptions of
consent in said context. The focus will primarily be on the conception of
consent as either attitude or expression and an examination and comparison
of suggested rape legislation models that represent these two different ways
of understanding consent. When comparing the models my aim is to
understand the consequences for negative sexual autonomy of treating
consent as either attitude or act and to answer which model provides the
best protection of negative sexual autonomy. I base my comparison on
negative sexual autonomy because it is the interest modern rape legislation
seeks to protect, the right not to partake in or be subjected to sexual acts. 3
The removal or obstruction of choice, the disregard for another’s
subjectivity, is what constitutes the gravamen of rape. I will also examine
the consequences for legal security of seeing consent as attitude or act and
answer which of the examined models provide the best protection of the
legal rights of the accused, as this interest has to be protected in all criminal
law and for which the presumption of innocence makes up the core. Those
accused of crimes also have rights under international human rights law as
enumerated in articles 14-15 of the ICCPR and articles 6-7 of the ECHR.
These two interests and the reasons why they form the foundation for my
comparison of rape models will be discussed in greater detail in chapter
four.

1.3 Delimitations
This thesis focuses on rape as a human rights issue and is therefore limited
to rape in peacetime. Rape during armed conflict involves partly different
issues; the state apparatus may be broken down, unable to uphold law and
order or the state may itself be involved in systematic attacks on civilians as
a means of warfare. Humanitarian law is applicable during armed conflict,
which retains its own separate set of legal documents and rules. 4 I am
interested in rape committed by non-state actors, as this is the most
prevalent scenario in states outside the context of armed conflict.

I will focus on rape committed by and against adults. Rape of children

differs from rape of adults in how society views such violations and how
they are dealt with under law. Moreover, children cannot give consent that
works as a defense to rape conviction under any legislation. 5

Consent is also most relevant where the defendant and putative victim knew
each other at least superficially. Even in historical cases, the resistance

3
ICTY came to this conclusion after reviewing national criminal law. Prosecutor v.
Kunarac, Kovac and Vukovic para. 457 of the judgment. The ECtHR also came to this
conclusion in the case of M.C v. Bulgaria (para. 165 of the judgment) after conducting a
survey of member-state law and practice.
4
See Greenwood, The law of war (international humanitarian law) in International law, pp.
789-790
5
For an overview of the age of consent in various states see
[Link] or [Link]

8
requirement was waived in cases where the attacker was a stranger. Then as
now, nonconsent is assumed when the rapist is a complete stranger – the
only plausible defence in these cases is usually mistaken identity. 6

This thesis is limited to discussing rape of women by men. As far as we

know, in cases where both offender and victim are adult and outside some
specific environment such as prison, the overwhelming number of cases
consists of this constellation. In addition there is far more literature on
heterosexual rape.

Finally, I am only interested in the second element of the rape crime that
which delineates lawful from unlawful behaviour namely, how sexual acts
came about. I will not be discussing what sexual acts reach a level of
severity that justifies labelling the acts rape.

1.4 Disposition, method and material

The second chapter of this thesis focuses on lex lata – what the law is in the
context of international human rights when it comes to the crime of rape. I
study the sources of international law 7; the relevant UN covenants (ICCPR,
CAT and CEDAW) and the general comments and decisions of the bodies
set up to monitor and elucidate rights in the conventions. 8 I then proceed to
study the regional European mechanism, the European convention of human
rights and the case law of the court set up to monitor and clarify the
convention obligations.

In chapter three, I examine the concept of consent in the context of rape in

criminal law as it is at the national level the term has evolved and its
meaning has been discussed and interpreted to the greatest extent. I clarify
the different meanings courts and legal commentators give consent in said
context using mostly Peter Westen’s analysis of consent.9 I discuss the use
of the term consent as both empirical fact and as demarcation between legal
sex and illegal rape. I also discuss the view of consent as either mental state
or expression. Finally, I bring up and respond to various critique lodged
against the very use of consent as delineator between sex and rape.

Chapter four focuses on the interests to be reconciled in rape legislation:

negative sexual autonomy that all modern rape legislation aims to protect
6
Leijonhufvud, Samtyckesutredningen, p.36; Bryden, Redefining rape, p. 34
7
The sources of international law are enumerated in article 38 of the statute of the
International Court of Justice and are as follows (in shortened form): a. international
conventions b. international customs c. general principles d. judicial decisions and
teachings of highly qualified publicists. Rules of international law must derive from one of
these sources. Thirlway, The sources of international law, in International law, pp. 117, 120
8
General comments provide substantive interpretations of convention articles. The treaty
bodies decisions or ‘views’ are considered morally if not legally binding on states. Steiner,
International protection of human rights, in International law, p. 768
9
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, pp. 333-359 and Westen, The logic of consent. The diversity and
deceptiveness of consent as a defense to criminal conduct

9
and, the legal rights of the accused that always have to be upheld in criminal
law. These interests also form the basis for my subsequent analysis and
comparison of three consent-based models; examining how well the models
protect these two interests.

In chapter five, I focus on lex ferenda and examine three suggested rape
legislation models that exemplify understanding consent as either act or
attitude and their effect on negative sexual autonomy and the legal rights of
the accused. Expressive and attitudinal consent is applied in various forms
in state legislation but for pragmatic reasons, to better elucidate the
differences between the two approaches to consent, I choose to examine
them as presented in legal scholarship. I will however discuss what I and
various legal commentators believe would be the outcome in practice of
these theoretical models. I will also use real cases to illustrate the
differences in outcome between the compared models and to highlight
possible problem areas for the models. In two instances, I discuss what the
outcome actually is in practice (lex lata); when I discuss the minor impact of
negligence liability and the fact that when models are implemented in law
they work in combination with other rules such as mens rea.

Since the states applying consent-based rape legislation and the judicial
scholars mostly occupied with the issue of consent are states of common
law tradition my material is mainly of British and Anglo-American origin.
In addition to examining my chosen models, I have studied texts, comments
and suggested rape legislation models from a variety of prominent legal
commentators concerned with the issue of rape in order to help analyze the
strengths and weaknesses, differences and similarities, of my examined
models.

In the sixth and final chapter, I compile my previously drawn conclusions

concerning lex lata in the context of rape in international human rights law
and provide a short recapitulation of the different conceptions of consent
and response to the criticism against the concept and its use in the criminal
law of rape. Thereafter I account for the general conclusions I have drawn
about consent when examining the three models. Followed by an analysis of
which model provides the best protection of negative sexual autonomy and
the legal rights of the accused respectively and an account of the effects on
these two interests when understanding consent as either a mental state or an
expression.

10
2 Rape under Human rights law
Under the UN-scheme, the covenants of possible interest when examining
rape as a human rights violation are the International covenant of civil and
political rights (ICCPR), the Convention against torture and other cruel and
inhuman or degrading treatment or punishment (CAT) and the Convention
on the elimination of all forms of discrimination against women (CEDAW).

CAT is only applicable when a state is involved in or acquiesces to ill-

treatment.10 It is therefore irrelevant to my inquiry as I am interested in rape
committed by non-state actors i.e. civilians.

The ICCPR has several articles that could be relevant such as prohibition of
torture11 (art. 7), right to privacy (art. 17) and right to equal protection of the
law (art. 26). The human rights committee, the body established to monitor
the convention, issues general comments clarifying the convention articles.
In the general comments relating to articles, 7, 17 and 26 12 the committee
states an obligation to protect these rights even against interference by non-
state actors. However none of the general comments mention rape nor does
the issue of consent in relation to rape come up in the committee’s
concluding observations on state reports or in the context of individual
complaints brought forth. 13

The most relevant UN covenant is therefore CEDAW. Article 2 of the

convention requires state parties to condemn all forms of discrimination
against women. According to the committee established by the convention,
gender-based violence is a form of discrimination that impairs the
enjoyment of several rights afforded civilians such as freedom from torture,
equal protection under the law, highest attainable standard of health, liberty
and security of person. 14 These rights are also protected against interference
by other individuals acting in a private capacity. 15 In other words, states are
required to take measures to prevent, investigate and punish rape committed
by non-state actors in order to live up to their convention obligations. 16 In
addition, the Committee repeatedly urges states to define rape as sexual
intercourse without consent in its concluding observations to state reports. 17
Unfortunately, no further guidance concerning how to define consent is
given.

10
Article 1 of the convention
11
ICCPR has no requirement of state involvement or acquiescence.
12
General comments no. 7, 16 and 20
13
I have used [Link] to scan the contents of the various human rights bodies
concluding observations on state reports and the individual complaints brought forth.
14
General recommendation no. 19, p. 1, 7
15
General recommendation no. 19, p. 9.
16
CEDAW articles 2b,c,e,f, 5a and general recommendation no. 19, p. 9.
17
See e.g. CEDAW, A/55/38 part II (2000) 61 at paras. 151; CEDAW, A/57/38 part I
(2002) 13 at paras. 98.
[Link]

11
The most well developed regional human rights mechanism is the European
convention (and court) of human rights (ECHR). 18 Over the years the court
has established a clear obligation on states to protect convention rights from
interference by non-state actors.19 The court has also dealt specifically with
the issue of rape in the case of M.C v. Bulgaria and made clear that rape
violates the rights under articles 3 (prohibition of torture) and 8 (right to
privacy) of the convention. 20

According to the court, consent is the instrument to use in order to protect

sexual autonomy. Consent works as the dividing line between legitimate and
illegitimate behaviour. Accordingly, all investigations should focus “on the
issue of consent” 21 and “any non-consensual sexual act” 22 should be
penalised and prosecuted. This does not necessarily mean that states have to
prosecute all such proscribed acts as rape. The Court usually does not
regulate in detail how states should live up to their obligations; the means of
implementation are left to state discretion. In other words, in all likelihood
states may reserve the rape label for sexual acts obtained by use of violence
or threat thereof as long as these states also criminalise other ways of
achieving non-consensual sexual acts. 23

The court uses the phrase “any non-consensual sexual act” 24 which could
indicate a very inclusive approach to sexual offences. A wide variety of
actions and situations could be relevant such as threat to other interest than
life/health, deceit, cases involving an unconscious or drunk victim and so
on. However, the range of sexual conduct that must be penalised depends on
the meaning given ‘consent’ and elaboration of factors that can invalidate
consent. Unfortunately, the judgment gives little guidance here. Yet it is
apparent the court places certain conditions on consent, not anything will
count as such. For instance, absence of physical resistance by the victim will
not count as consent as this does not reflect the evolving understanding of
rape victim’s reactions. 25 Verbally expressing non-consent as M.C did seem
to be sufficient to warrant criminal sanction. If states are also under an
obligation to prosecute nonconsensual cases where the victim was unable to
express nonconsent is unclear. The Court places strong emphasis on
considering all surrounding circumstances when determining whether the
situation involved nonconsent (actus reus) though.

Surrounding circumstances are also relevant when determining mens rea.

18
It is only the regional European mechanism that has the jurisdiction to consider
individual complaints. ECHR art. 34; American Convention on Human Rights art. 61;
Statute of the African Court of Justice and Human Rights art. 29-30
19
M.C. v. Bulgaria, Application no. 39272/98, 2003, para. 149 of the judgment
20
M.C. v. Bulgaria, Application no. 39272/98, 2003, para. 187 of the judgment
21
Para. 181 of the judgment
22
Para. 166 of the judgment
23
Petter Asp also comes to this conclusion in M.C. v. Bulgaria – a Swedish perspective,
Scandinavian Studies in law vol. 54, pp. 191-211
24
M.C. v. Bulgaria para. 166 of the judgment
25
Paras. 164, 166 of the judgment

12
In M.C’s case, the “coercive environment” created by the men – taking
M.C. to a deserted area where she was alone with three men she barely
knew and dependant on them to get back home – was highly relevant. 26 The
court regrettably gives no further guidance on mens rea, for instance if
belief in consent has to be reasonable. In other words, it is unclear whether
dolus (intent) is required or if culpa (negligence) is sufficient for liability.

In conclusion, rape is a recognized human rights violation on both global

and regional level. State parties to CEDAW and ECHR are under an
obligation to prevent, investigate and punish rape. On the regional European
level states are obliged to focus on consent and penalize any nonconsensual
sexual act and on the global level they are urged to do so. However neither
UN nor European mechanism clarifies to any great extent what is required
of consent in order to work as defence against criminal liability for rape.

States are obliged to incorporate human rights into their national legislation
when they have ratified human rights conventions. In the case of rape, states
have to align their criminal law and its application with the convention
obligations. As it is national criminal law that in the end shall protect
civilians against rape the rest of this thesis will focus on consent in the
criminal law of rape. The following chapter will look at the concept of
consent and the various meanings given consent in the criminal law context
and a subsequent chapter will examine and compare various possible
models of consent-based rape legislation that exemplify viewing consent as
either mental state or expression.

26
Para. 180 of the judgment

13
3 Consent in the context of
rape in criminal law27
Consent creates a privilege in the context of criminal law. When someone
consents to another’s conduct (that would otherwise constitute a crime), the
consent removes the obligation to refrain from the conduct in question. 28
This is naturally conditioned on the fact that the person giving the consent
has the right to decide over the interest at hand. 29 X can for instance not
consent to Y killing him, nor can X give Y consent to have sex with B.

In the context of rape, provided the consenter has the right to decide over
the interest, consent removes the obligation to refrain from having sex with
the other person and in so doing negates criminal liability for rape. Yet this
is only one way to perceive of consent, for the term holds different
meanings within criminal law and in the context of rape. Courts and legal
commentators use one word to signify different things and confusion
ensues. There exist three pairs of crosscutting conceptions of consent in the
rape context: factual versus legal, attitudinal versus expressive, actual versus
imputed.30

3.1 Factual versus legal consent

I will start by explaining the difference between factual and legal consent. In
the rape context, there are situations that involve no consent at all and there
are situations that involve some type of consent. For instance, when an
assailant has his victim completely physically overpowered, beats or finds
his victim unconscious and proceeds to have sex with her there is no consent
at all. In these situations, the assailant removes any possibility of choice
from his victim. If an assailant instead tells his conscious victim ‘have sex
with me or I will beat you’ he is giving her a choice, albeit limited. He is
enlisting her cooperation and if she chooses sex – even if it is just because
she prefers it to being beaten – the situation involves an instance of ‘factual
consent’ to sex. 31 Factual consent does not involve moral considerations

27
I have used a simplified version of Westen’s description of consent and its different
meanings, for a more detailed account read Westen, Some common confusions about
consent in rape cases, Ohio state journal of criminal law vol.2, pp. 333-359
28
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, pp. 333-334
29
Asp, Sex och samtycke, pp. 90-91
30
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, pp. 335-337
31
I have borrowed the terms ‘factual’ and ‘legal’ consent from: Westen, Some common
confusions about consent in rape cases, Ohio state journal of criminal law vol.2, pp. 333-
359. Factual and legal consent corresponds with descriptive and normative consent, terms
frequently used by other authors. I use Westen’s terminology as he to my knowledge has
written the most elaborate and illuminating description of the two forms of consent and the
differences between them.

14
about how consent was attained; it merely describes the empirical fact that a
person chooses sex regardless of the underlying reason. A woman (or man)
factually consents to sex, whether in mind or manifestation, when she
chooses sex because she unconditionally desires it, she wants it for another
reason than desire or she considers it the best alternative in the situation she
finds herself. 32

Rape law cannot cease to apply as soon as a situation involves factual

consent. If it did a lot of harmful and culpable behaviour would go
unpunished. In order to protect individuals’ sexual integrity rape law has to
contain a normative dimension. Legal consent consists of instances of
factual consent under “such conditions of competence, knowledge and
freedom” as the state considers adequate for the consent to constitute a
defence to rape.33 Where factual consent relates to the ability to make a
choice in the first place, legal consent relates to the voluntariness of such a
choice. Yet the voluntariness has nothing to do with whether the victim
thinks her choice voluntary, instead it has to do with whether the relevant
jurisdiction sees her choice as voluntary enough to constitute a defence to
rape. 34 Legal consent therefore involves normative yet objective
deliberation in that the preconditions for legal consent are decided by the
state and not the subjective beliefs of the victim. 35 So the woman who only
chooses to have sex with her boyfriend because he threatens to leave her
otherwise consents legally (unless her jurisdiction makes her boyfriend’s
behaviour illegal) regardless of how invalid and coerced she believes her
consent to be.

32
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 335. I have exchanged Westen’s alternative “sufficiently indifferent
to it as to be willing to leave its occurrence to others” with ‘want it for other reason than
desire’ because I think it better describes the underlying reason for the choice. I believe
Westen’s phrase is to narrow, if someone chooses sex for instance to get pregnant or to
impress friends the reason for their choice is not sexual desire but it is also not indifference.
Indifference also fits under my description, as it is merely another way to describe wanting
to let someone else decide.
33
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 340. To simplify matters I do not divide legal consent into
‘prescriptive’ and ‘imputed’ as Westen does. Instead I disregard ‘imputed’ consent and use
legal consent only in its ‘prescriptive’ form that is, actual consent under the conditions
required by state.
34
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 335
35
Wertheimer, What is consent? And is it important?, Buffalo criminal law review vol. 3, p.
562

15
 Factual Consent
empirical and objective

Absent Present
The situation does not involve The situation involves a choice
any choice by the X. by X to have sex, though the
Ex. X is unconscious, underlying reasons for that
physically overpowered. choice can range from sexual
desire to self-preservation and
does not by itself constitute a
defence to rape

Legal Consent
normative and objective

Absent Present
X’s choice (her factual consent) X’s choice meets the level of
fails to meet the level of freedom, knowledge and
freedom, knowledge and competence required by the
competence required by the state and therefore provides the
state. The state may for instance accused with a defence against
require that her choice be rape conviction.
uninfluenced by certain threats,
certain forms of deception or
intoxication reaching a specific
level. The state may also
require a certain level of
competence for instance that a
person who chooses sex has
reached a specific age, does not
suffer from a severe mental
handicap and so on.

However, rape statutes do not speak of ‘factual’ or ‘legal’ consent, statutes

speak simply of consent and use consent in either the factual or the legal
sense. A situation can involve both factual and legal consent but not within
one jurisdiction, consent is used either in a factual as opposed to legal sense

16
or in a legal as opposed to factual sense. 36 Consider a case involving a
woman who has consented under such conditions as two jurisdictions (the
first defining consent as factual, the second defining consent as legal) both
regard as adequate to dismiss rape liability. The jurisdiction that uses
consent legally need only say the woman consented as the normative
dimension is here included in the term consent. A jurisdiction applying
consent factually on the other hand will have to add a separate normative
element (since it uses consent more narrowly, merely to describe the fact
that a woman has chosen sex regardless of her reasons) saying for instance
that the consent was ‘valid’ or ‘lawful’. 37

Example of a statute that applies consent legally

[A] man commits rape if he has unlawful sexual intercourse with a woman
who at the time of the intercourse does not consent to it…38

Example of a statute that applies consent factually

A male person commits rape when he has sexual intercourse with a female
person who is not his wife,
a. without her consent, or
b. with her consent if the consent
i. is extorted by threats or fear of bodily harm,
ii. is obtained by impersonating her husband, or
iii. is obtained by false and fraudulent representations as to the nature and
quality of the act.39

A relevant question is which demands states should place on choice to reach

the level of legal consent. Unlike legal consent that is all or nothing,
autonomy comes in degrees. 40 Our choices are rarely entirely free from any
outside influence and internal factors such as intoxication and mental health,
affects our choices as well. Obviously, states cannot demand that choice be
free from any influence as few if any would then be able to give legal
consent. The challenge is to achieve a balance between protection against
harmful infringements on personal choice while at the same time refraining
from unduly obstructing people’s positive sexual autonomy. 41 In western
state legislation, there is abundant support to view underage and use or

36
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 338
37
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 339
38
Sexual offences act (amendment) Act. 1976, 24 & 25 Eliz. II, c. 82, § 1(1) (Eng.). cit;
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 339
39
Criminal code, R.S.C., ch. C-34, § 143 (1970) (Can.) (repealed 1980-81). cit; Westen,
Some common confusions about consent in rape cases, Ohio state journal of criminal law
vol.2, p. 338
40
McGregor, Is it rape?, p. 120
41
Wertheimer, What is consent? And is it important? Buffalo criminal law review, p. 564

17
threat of violence as factors that invalidate consent. 42 State legislation and to
an even greater extent legal scholarship also provides ample support to view
mental retardation/illness, intoxication, deception and coercion 43 as factors
that may vitiate consent depending on severity. 44

3.2 Attitudinal versus expressive consent

The second conceptual pair is attitudinal versus expressive 45 consent and
relates to how people can actually choose sex for themselves. The difference
is between subjectively experiencing choice and objectively manifesting
choice. 46 Below I will use the term consent in the factual sense – as choice
regardless of circumstances – where nothing else is stated.

Under an attitudinal consent model, consent is a subjective mental state one

has. 47 Courts and legal commentators have often treated attitudinal consent
as a desire the putative victim has. 48 This is erroneous I think, one can desire
sex without choosing it for instance thinking it too early in a relationship.
Reversely, one can choose sex without feeling sexual desire, without it
being a matter for the state. 49 If a mental state is to be an essential part
(though insufficient by itself) in protecting autonomy it has to emanate from
a conscious mind capable of reflection. It has to be a product of will, a
mental state of choice. 50 We do not choose nor control our desires, merely
whether to act on them. 51 Furthermore, the requirements for legal consent
concerning freedom, knowledge and competence do not make sense if
factual consent is desire. Violence, threats etc do not change what the victim
desires it does however change what she chooses. 52

42
All states (with the exception of some states where all sex outside of marriage is illegal)
have a set age of consent, see [Link] or
[Link] Furthermore, all states criminalize securing sex
by means of threat of death or extreme injury or pain. Westen, Some common confusions
about consent in rape cases, Ohio state journal of criminal law vol.2, p. 351
43
Threatening something other than violence, for instance to destroy something of great
economic value.
44
See McGregor, Is it rape?, chapters 5-6; Estrich, Real rape, p. 103; Case of M.C. v.
Bulgaria, Application no. 39272/98, paras. 89-90, 92-95; Sexual offences act 2003 chapter
43 (England); 6 kap. 1-2 §§ Brottsbalken (Sweden)
45
I use Westen’s term ‘expressive’ but this type of consent is often referred to as
‘performative’. See for instance: Wertheimer, What is consent? And is it important?,
Buffalo criminal law review vol. 3, p. 566; McGregor, Is it rape?, p. 125
46
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 336
47
McGregor, Is it rape?, p. 118
48
McGregor, Is it rape?, p.121
49
For short discussions on the subject see McGregor, Is it rape?, p. 121; Bryden,
Redefining rape, Buffalo criminal law review vol. 3, p. 338
50
Hurd, The moral magic of consent, Legal theory vol. 2, pp. 124-126
51
Kessler Ferzan, Clarifying consent: Peter Westen’s The logic of consent, Law and
philosophy vol. 25, p. 205
52
Kessler Ferzan, Clarifying consent: Peter Westen’s The logic of consent, Law and
philosophy vol. 25, pp. 205-206

18
Expressing this mental state of choice is neither necessary nor sufficient
under an attitudinal model. 53 Consequently, ability to act (outwardly)
voluntarily is not necessary but the previously mentioned cognitive abilities
consciousness and ability of reflective thought are, since the victim must be
capable of making a choice. 54

Expressive consent models see consent as something one does, an act. 55

However, the act has meaning because it refers to an underlying mental
state. 56 Expressive models focus on the manifestation of choice instead of
the mental state it refers to because proponents argue the way consent
protects autonomy is by acting as permission to sexual acts. 57 In order to
work as permission, consent needs to be communicated. Without
communication, people have no reason to alter their behaviour and engage
in sexual acts with others. 58 The focus on act not mental state does not mean
expressive models look no further than consenting behaviour though. The
circumstances surrounding the consenting behaviour need to be morally
legitimate (as determine by the jurisdiction) meaning that if a situation
involves circumstances that invalidate consent (again, as determined by the
jurisdiction) the victim’s expression of consent does not exculpate, in other
words there is no legal consent.

Expressive models see expression as necessary and sufficient to determine

whether a situation involved factual consent.59 However, there are also
hybrid models that consider expression necessary yet not sufficient to
determine factual consent. These models can also be referred to as weak
expressive or weak attitudinal views. They are a sort of combination of
expressive and attitudinal model; the victim’s expression needs to be
accompanied by a mental state.60

I will examine this conceptual pair in more detail in a later chapter when I
compare different consent-based models, one expressive, one attitudinal
model and one hybrid.

3.3 Actual versus imputed consent

The final conceptual pair is that of actual and imputed consent. Actual
consent relates to a choice an individual has made for herself whether that
choice was experienced or manifested; factual (and thus in itself not a
defence against rape charges) or legal (and thus in accordance with the

53
McGregor, Is it rape?, p.118
54
McGregor, Is it rape?, p.120
55
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 336
56
McGregor, Is it rape?, p. 125
57
McGregor, Is it rape?, p. 114
58
McGregor, Is it rape?, p. 124. See also Wertheimer, What is consent? And is it
important?, Buffalo criminal law review vol. 3, p. 568, discussing consent as authorization.
59
Wertheimer, What is consent? And is it important? Buffalo criminal law review, p. 566
60
Wertheimer, What is consent? And is it important? Buffalo criminal law review, p. 566

19
jurisdictions demands regarding competence, knowledge and freedom). 61
Imputed consent is the opposite of actual consent; it is a legal fiction of
actual consent. When a jurisdiction applies imputed consent it means that
although a situation involves no consent (factual or legal, attitudinal or
expressive) the law will act as if the situation did involve consent and
furthermore under such conditions as to work as a defence against rape
liability. 62 The marital exemption is one example of imputed consent. In
states that still apply the exemption women cannot bring rape charges
against there husbands, by marrying women are considered to consent to all
future sex within that marriage. 63 Another example of imputed consent
applied in some states is the rule that a woman cannot change her mind
during intercourse. The initial (legal) consent is considered to last
throughout the act even if the woman changes her mind. 64 Hereafter I will
completely disregard imputed consent and focus on actual consent as does
my examined rape models.

3.4 Relationships between conceptual

pairs
These three conceptual pairs of consent do not only interact within pairs but
also between pairs. Every instance of subjective (attitudinal) or objective
(expressive) choice to have sex is an instance of actual consent. Equally,
every instance of actual consent involves a woman choosing sex in mind or
deed or both. 65 Every instance of factual consent is an instance of actual
consent because factual consent is the empirical fact that a woman chooses
sex regardless of her reason for doing so. 66 The other relationships between
pairs all involve imputed consent and are therefore not relevant for this
thesis. 67

3.5 Criticism against the use of consent in

rape law
The very use of consent to establish the legal boundary between sex and
rape has been criticized for various reasons. Feminists criticize the
61
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 337
62
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 337
63
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 337
64
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 337
65
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 339
66
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 340
67
For more examples of interaction between conceptual pairs of consent see Westen, Some
common confusions about consent in rape cases, Ohio state journal of criminal law vol.2,
pp. 339-340

20
application of consent arguing that law is disingenuous about consent in the
sexual context. 68 Even though liberal consent theory demand that consent be
‘freely given’, courts have historically found and to some extent still find
situations involving submission and reluctant acquiescence to be
consensual. 69

Westen argues that nowadays failure to demand ‘freely given’ consent may
often be due to jury confusion about consent, rather than gender
discrimination. 70 Judges fail to give jury’s instructions about which type of
consent they should examine, which type of consent the statute refers to –
factual or legal. He gives the example of a Texan grand jury, which
dismissed rape charges in a case involving a woman submitting at
knifepoint on the condition that her attacker put on a condom. Westen
believes the jury understood the prosecutor as using consent factually, in
other words as that which the victim preferred under the circumstances.
Indeed, the woman did consent in the factual sense as she chose sex over
knife injuries yet hardly in the legal sense as she was under threat of serious
injury. 71

Yet, even disregarding the problem with confusion about the different
meanings of consent, the problems commentators speak of lie not with the
concept of consent itself. It lies with the normative understanding within
states of what kinds of pressures employed to obtain sex should be
prohibited. 72 If this normative understanding is deficient in some way the
protection of negative sexual autonomy will suffer regardless of whether
states use consent or some other legal construct in their rape laws. When the
norms are changed to protect negative sexual autonomy better, they can be
‘fully codified in terms of consent.’73

Commentators have also criticized the different application of consent when

it comes to sexual offences from its application in other areas of law. 74 In
other areas of law, consent has to be sought out; it is not – as in rape law
based on lack of consent – presumed. 75 Furthermore, circumstances that
vitiate consent in other areas of law do not when it comes to sexual relations
or if they do, they are applied in a much narrower fashion. 76 Take the

68
MacKinnon, Towards a feminist theory of the state, pp. 168, 175; cit. McGregor, Is it
rape? p. 77
69
Pateman, Women and consent, Political theory 8(2); cit. Cahill Rethinking rape, p.172;
MacKinnon, Toward a feminist theory of the state; cit. McGregor, Is it rape?, pp. 79-80
70
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 341
71
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 341
72
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 359
73
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 359
74
McGregor, Is it rape?, p. 104
75
Rape statutes do not explicitly express a presumption of consent but imply it when
requiring physical or verbal resistance. McGregor, Is it rape?, p. 104
76
McGregor, Is it rape?, p. 100

21
example of fraud, theft by fraud is illegal both as fraud in factum and as
fraud in inducement. However, even states that see deception in sexual
relations as a vitiating circumstance refer only to fraud in factum. 77 Both of
these points of criticism will be discussed below under the Yes Model
subchapter.

77
McGregor, Is it rape?, pp. 181-183. Fraud in factum exists when someone is deceived as
to the nature of the act; he/she consents to X but is subjected to Y. For instance a
gynecologist has attained consent to insert a medical instrument but inserts his penis instead
(see McNair v. State, 1992). Fraud in inducement exists when someone deceives another in
order to get her to consent, she is not deceived about the act but her reasons for consenting
came about through deception. A gynecologist deceives his patient into thinking that he can
cure her deadly disease by penetrating her with his penis (see Boro v. Superior Court,
1985).

22
4 The foundation for my
analysis – two competing
interests
In this chapter, I will discuss the two competing interests that all modern
rape legislation seek to reconcile – protection of negative sexual autonomy
and the legal rights of the accused. How well these interests are protected
constitutes the basis for my examination of consent-based rape legislation
models in the subsequent chapter.

4.1 Protection of negative sexual

autonomy
Historically rape legislation has aimed to protect anything from male
property right to the institution of marriage, to morals. 78 Currently there is
broad consensus that rape legislation aims to protect sexual autonomy and
integrity. 79 States should protect negative sexual autonomy, meaning the
right not to partake in or be subjected to various types of sexual activity.
Positive sexual autonomy on the other hand, should be free from state
interference as long as there is no harm to others, leaving people free to
choose their sexual lives for themselves. 80

Why then is the choice to refuse sex so central to the crime of rape. Our
choice may be superseded in other situations without it being considered a
significant harm to us. The significance lies in what the choice ranges over;

78
Rape legislation initially evolved as a form of protection of male property rights. Fathers
had an interest in their daughters’ value on the marriage market and husbands had an
interest in having sole sexual access to their wives, not least to their reproduction to ensure
the children they reared were their own and their sons the rightful heirs to their property.
Later on, the interests became rather to protect marriage and Christian values, during this
time all extramarital sex was criminalized and so it did not matter if a woman had happily
chosen to have sex with the man accused of raping her. A married woman, on the other
hand, could be violently forced to have sex with her husband without having recourse to the
courts. Later still the interest became protecting common decency and morals but also the
freedom of the individual. See McGregor, Is it rape?, p. 29; Dripps, Beyond rape: An essay
on the difference between the presence of force and the absence of consent, Columbia law
review vol. 92, pp. 1780-1781
79
ICTY came to this conclusion after reviewing national criminal law in search of general
principles common to the world’s major legal systems in the context of rape. Prosecutor v.
Kunarac, Kovac and Vukovic para. 457 of the judgment. The ECtHR also came to this
conclusion in the case of M.C v. Bulgaria (para. 165 of the judgment) after conducting a
survey of member-state law and practice. Sexual autonomy is also what several western
states claim to be protecting with their rape legislation. SOU 2001:14, p. 143; NJA 2004 s.
231; People v. Cicero, California court of appeal (Cal. App. 3d at p. 475). There is also
general consensus among legal commentators that rape law ought to protect negative sexual
autonomy. See McGregor, Is it rape?, pp. 111-112, Asp, Petter, Sex och samtycke, p. 31
80
McGregor, Is it rape, pp. 111-112

23
our bodies, our gender and sexuality. 81 So much of our identities are tied to
these facets of our being. They are as important to describing who we are as
our thoughts and feelings are. 82Since sexuality and sexual expression is such
an important part of adult life, self-determination in this area is
fundamental. 83

It is also vital to have control over one’s own body. This does not mean that
all matters involving the body will have equal importance and claim to
protection. For instance when it comes to physical contact some body parts
simply carry more meaning, here sexuality comes in again. Unwanted
contact has greater effect where body parts connected with sexuality are
involved. 84 Patting someone’s back does not carry as much meaning as
patting someone’s behind. The first act does not have the same power to
hurt feelings and humiliate.

Additionally, it is often in sexual situations we are at our most exposed,

physically and psychologically, so the removal of choice affects us at our
most vulnerable. 85 In rape cases, the blatant disregard for the victim’s
choice also shows a disregard for her subjectivity. She is turned into a mere
sexual object, a tool to fulfil the perpetrator’s sexual needs or desire. She is
treated as inferior to the assailant as her choice is irrelevant and need not be
respected.86

The very possibility of female sexual autonomy has however been

questioned. MacKinnon has argued that in a world of compulsory
heterosexuality and sexual hierarchy women’s inferior status make even
“normal” heterosexual sex coercive. 87 She argues that women cannot
exercise free choice in the heterosexual context making the difference
between rape and heterosexual sex one of quantity (i.e. involving more or
less coercion) not of quality. 88

This view shows an all or nothing approach to autonomy. However,

absolute autonomy is a flawed notion since no one (female or male) is
entirely unaffected from outside influence. 89 Autonomy comes in degrees
and the absence of absolute autonomy in no way implies total lack of
autonomy. While gender hierarchy might limit women’s choices, it does not
remove all female agency. 90 MacKinnon’s view also disregards women’s
81
McGregor, Is it rape, p.221
82
Cahill, Rethinking rape,
83
McGregor, Is it rape, p. 224
84
McGregor, Is it rape, p. 224
85
McGregor, Is it rape, p. 225
86
McGregor, Is it rape, p. 225
87
Cahill, Rethinking rape, p. 42
88
Cahill, Rethinking rape, pp. 37-38, 40
89
West, The difference in women’s hedonic lives: A phenomenological critique of feminist
legal theory, in At the boundaries of law: Feminism and legal theory; cit. Cahill,
Rethinking rape, p. 46
90
West, The difference in women’s hedonic lives: A phenomenological critique of feminist
legal theory, in At the boundaries of law: Feminism and legal theory; cit. Cahill,
Rethinking rape, p. 45

24
own experiences as few women see mutually chosen sex as similar to rape.
If heterosexual sex were as similar to rape as MacKinnon argues, women
would not need to fear rape as much as they do as they would already be
experiencing some (albeit lesser) form of rape on a regular basis.

Another question is whether sexual practices can be harmful even where

sexual autonomy is not violated. Take the example of sadomasochism; in
these situations, there certainly exists a risk of physical harm even if no
one’s choice is overridden. States should not ban all such activity or
persecute its practitioners, as this would entail an undue interference with
positive sexual autonomy. 91 However, outside the sexual context and with
the exception of sports and minor injuries, consent does not remove criminal
liability for violence. 92 Neither should it in the sexual context, here too
consent should only be allowed as a defence to minor injuries. With all due
respect for individual’s positive sexual expression, any other system would
likely do masochists more harm than good as it would leave them entirely
without protection or possibility of redress. 93 In addition, it could harm rape
victim´s as well if perpetrators were successful in arguing consent even in
the face of violence. 94 Situations as these should however not fall under the
rape paragraph, as the gravamen of rape is the violation of sexual autonomy.
In fact, the practice of sadomasochism helps show that the principal harm of
rape is disregard for sexual choice since masochists do not feel their
autonomy or integrity is injured due to their sadomasochistic practices.

Another circumstance that shows that violation of sexual autonomy is the

gravamen of rape is the fact that research shows that the psychological
effects on rape victims are the same whether the victim was subjected to
extrinsic force or not.95 Focusing merely on the violence used to obtain
sexual acts as some commentators have done neglects to see the violence
involved in the nonconsensual penetration of the victim. 96 Furthermore, the
right to be free of violence or threat thereof is protected under other criminal
provisions. While the use of violence to ensure intercourse does not
constitute the gravamen of rape, violence can and perhaps should constitute
an aggravated offence as here the perpetrator violates additional interests the
state seeks to protect.

So far, this chapter has focused on the harm to the victim. Yet the
occurrence of rape has consequences that go beyond the harm to the
individual women victimized. The great prevalence of rape makes the threat
of being raped a real and continuous one for all women. The threat in itself,
even without personal experience of sexual assault, can influence women’s

91
McGregor, Is it rape, p. 245
92
McGregor, Is it rape, p. 106
93
McGregor, Is it rape, p. 244
94
McGregor, Is it rape, p. 244
95
Wiehe et al, Intimate betrayal: Understanding and responding to the trauma of
acquaintance rape,
96
West, Legitimating the illegitimate: A comment on Beyond rape, Colombia law review
vol. 93, p. 1445

25
lives and work to impede their freedom of movement 97 and their contacts
with the opposite sex with the result of reducing their world and depriving
them of certain experiences in life.

In the heterosexual context and when all involved are adults essentially all
perpetrators are male, all victims female. Some commentators argue that the
gender constellation and high prevalence of rape results in sending a
message of inferiority to all women (not only those subjected to rape) and
that states reinforce this message by its inadequate response. 98 Rape
therefore is not only a result of inequality but also perpetuates the same.

4.2 Rights of the accused

The protection of negative sexual autonomy must be weighed against the
rights of the accused to due process and a fair trial. There is an obvious
conflict between the defendant’s interests and the interest of the state not to
convict an innocent man on the one hand and the victim´s interest in justice
and the state interest of crime prevention and deterrence on the other hand.
The lower the burden on the prosecution is the greater the imbalance
becomes between the powerful and more resource equipped state and the
individual. The risk of convicting an innocent man also becomes greater, a
problem in itself and one that may also result in a loss of faith in the justice
system.

On the other hand, the higher the requirements for conviction are the fewer
rape victims obtain redress from the court, which has negative consequences
not only for the individual but also for the general protection of sexual
autonomy. Fewer victims obtaining justice can also lead to decreased faith
in the justice system in relation to this crime; this is especially problematic
when it comes to crimes with a strong gender aspect such as rape with
predominantly female victims and male perpetrators. This in turn may lead
to even fewer victims reporting incidents of rape 99 resulting in even more
rapists going unpunished and further negative consequences for sexual
autonomy ensue.

Yet, the cardinal rule is the ‘presumption of innocence’. When I analyze

suggested rape legislation models in the following chapter, I will examine
whether certain ways of understanding consent or certain elements of the
models entail negative consequences for the defence and if so are they
justified. For instance, what are the consequences for the defendant of
understanding consent as: a mental state into which he has no access, an
expression alone without considering whether it was seriously meant? Do
the models furnish a bright line between criminal and non-criminal
behaviour. Are the suggested vitiating circumstances too imprecise or do
97
By making women consciously or unconsciously avoid certain places or activities etc.
98
McGregor, Is it rape?, pp.230-231.
99
Rape is one of the most underreported crimes which can at least partially be explained by
the justice systems inadequate response to the crime. (on underreporting see Contemporary
issues in law, p.10

26
they go too far. Finally, do the models deviate too much from the general
publics understanding of what constitutes rape.

27
5 Analysing 3 consent-based
rape legislation models
In this chapter, I will examine a few different consent-based rape legislation
models proposed by legal commentators. One thing my chosen models all
have in common is that they all go further than the traditional force-
resistance approach of rape law; they all extend the group of potential
victims of rape. The victim traditionally recognized by rape law – one
subjected to actual or threatened violence or one who resists advances
physically – also enjoys protection under the models I have examined. I will
not discuss the sleeping/unconscious victim below, as she is not even
capable of giving factual consent; there is no possibility of choice when one
is unconscious. 100 Below I will use consent in the factual sense where
nothing else is stated.

Below I will examine three different consent-based models. I will look at

how well the models protect negative sexual autonomy by examining what
is required of those who do not wish to engage in sexual acts and in which
situations women are protected. Additionally, are men held liable for
unreasonable beliefs and does violent rape constitute an aggravated
offence? 101 When looking at how well the models protect the legal rights of
the accused the questions naturally mirror those above. What are required of
those who seek to have sex with someone else, which factors vitiate consent
and which type of mens rea establishes liability for rape?

I will examine models that exemplify three different ways of understanding

consent: one is expressive, one is a hybrid and one is attitudinal. I will start
with the No Model, which is the expressive model meaning expression is
necessary and sufficient. It is expression of nonconsent that is relevant, in
other words victims are required to verbally resist in order to have recourse
to the court, passivity connotes (factual) consent. The resistance requirement
is waived however in situations involving threat or use of violence,
misrepresentation of material fact or extortionate threats. 102 Under the No
Model, negligence is sufficient to establish liability. 103

The second model under scrutiny is the Yes Model. This is a hybrid (or a
weak expressive model), which requires expression but also a mental
element namely an intention to consent. 104 Under this model, those who

100
Westen, The logic of consent. The diversity and deceptiveness of consent as a defense to
criminal conduct, p. 25
101
Making violent rape an aggravated offence has consequences for protection of negative
sexual autonomy as well as separating offences increases chances of conviction for non-
violent rape. Dripps, Beyond rape: An essay on the difference between the presence of
force and the absence of consent, Columbia law review vol. 92, p. 1790
102
Estrich, Real rape, p. 103
103
Estrich, Real rape, p. 103
104
McGregor, Is it rape?, p. 126

28
want to engage in sexual intercourse need to receive affirmative expressions
in either verbal or behavioural form, passivity does not entail (factual)
consent. 105 Under the Yes Model underage, intoxication, mental
illness/retardation, deception and non-violent coercion are all factors that in
addition to violence can vitiate consent when sufficiently grave. 106 Men are
held liable for negligence also under the Yes Model. 107

Finally, the attitudinal model will be examined under which a mental state
of choosing sex is required for factual consent. Expression (whether
affirmative or negative) is neither necessary nor sufficient, consenters need
not even have ability to act outwardly voluntary. 108 They must however
have certain cognitive abilities such as consciousness and ability for
reflective thought since they must be capable of making a choice. 109 Since
no expression signifies consent, passivity does not signify either consent or
nonconsent under this model. As my account of attitudinal consent is not a
suggested model per se but instead based on an analysis of attitudinal
consent by Westen it contains no list of vitiating factors. However, Westen
makes it clear that vitiating factors are indispensable and encompass three
categories – competence, freedom and knowledge. 110

5.1 The No Model

Susan Estrich introduced the No Model in her 1987 book entitled Real rape
where she stated that “consent should be defined so that no means no”,111 a
nowadays famous slogan when discussing rape. Estrich argues that verbal
rejection should be enough to establish liability for rape, requiring physical
resistance from victims means demanding women risk injury even in cases
where the defendant’s intent is clear. 112 It also means giving immunity to
those assailants whose victims are scared or shocked enough to refrain from
physically resisting. 113

5.1.1 Sexual autonomy

The No Model is an example of a strong expressive model. Estrich argues
that liability for rape should include those “rapes where the woman says
no”. 114 Estrich sees that expression and attitude does not always converge
and then expression is decisive. 115 Since strong expressive consent models

105
McGregor, Is it rape?, p. 130
106
McGregor, Is it rape?, chapters 5-6
107
McGregor, Is it rape?, p. 202
108
McGregor, Is it rape?, pp. 118, 120
109
McGregor, Is it rape?, p. 120
110
Westen, The logic of consent. The diversity and deceptiveness of consent as a defense to
criminal conduct, p. 180
111
Estrich, Real rape, p. 102
112
Estrich, Real rape, p. 96
113
Estrich, Real rape, p. 96
114
Estrich, Real rape, p. 103
115
Estrich, Real rape, p. 102. “I have no doubt that women’s silence sometimes is the
product not of passion and desire but of pressure and fear. Yet if yes may often mean no, at

29
do not inquiry about mental state this model should mute arguments along
the line of ‘she said no but meant yes’ to the benefit of protecting negative
sexual autonomy.

From the negative sexual autonomy perspective, the No Model is preferable

to a traditional force-resistance approach. 116 It is more inclusive when it
comes to potential victims of rape as women who verbally refuse sex also
enjoy protection under law. It seems unwarranted to demand of victims the
tougher task of physically resisting when verbal refusal will also establish
nonconsent and intent, especially if Estrich is right in saying that this places
women at greater risk of (further) physical violence. However, there is
disagreement about the interaction between physical force by the perpetrator
and physical resistance by the victim. Some commentators argue that
physical resistance provokes more force by perpetrators.117. Other
commentators argue that violent attacks provoke physical resistance and not
the other way around 118. In situations involving an unarmed acquaintance
most women resist unwanted advances and are successful in doing so while
at the same time sustaining little or no injury119, which would suggest they
needed to employ little or no physical resistance.

Verbal rejection is according to Estrich also a form of resistance more

compatible with how women respond to attack, to demand physical
resistance is to enforce a male standard of response to assault. 120 Studies of
rape victims confirm that common responses are to try to get an attacker to
calm down and to stall, victims will often try to dissuade their attacker by
talking or pleading. 121 When defence strategies like the above amount to
verbal rejection victims will have recourse to the courts under the No Model
unlike a traditional force-resistance regulation. Unlike the Yes Model where
consent can be given behaviourally and therefore being able to read your
partner’s signals correctly is key, the No Model should work equally well
for new acquaintances as for long-time partners. Verbal rejection should be
just as easy to comprehend for the acquaintance as for the husband since it
involves less reading of signals – you do not have to know your partner as

least from a woman’s perspective, it does not seem so much to ask men, and the law, to
respect the courage of the woman who does say no and to take her at her word.”
116
Some modern versions of the force-resistance approach are very inclusive though as
they require very little in the form of force or resistance. Swedish rape law is an example
where force may be establish already by forcibly separating the victims legs while she is
clenching them together (resistance).
117
Marshall et al, Handbook of sexual assault: Issues, theories, and treatment of the
offender; cit. Marx et al, Tonic Immobility as an Evolved Predator Defense: Implications
for Sexual Assault Survivors, Clinical psychology: Science and practice Vol. 15 Issue 1, p.
80 at [Link]
118
Bryden, Redefining rape, Buffalo criminal law review vol. 3, note. 199
119
Rozee et al., The personal perspective of acquaintance rape prevention: A three-tier
approach, in Acquaintance rape: The hidden crime 216, 337, 349; cit. Bryden, Redefining
rape, Buffalo criminal law review vol. 3, p. 17 notes. 196-197)
120
Estrich, Real rape, pp. 62, 65
121
SOU 2001:14, p. 89

30
well to understand what her behaviour signifies as under the Yes Model, 122
no means no.

Expressing non-consent through behaviour – short of physical resistance -

will not do under the No Model however. Yet there are studies that show
that men and women frequently use behaviour to indicate both consent and
nonconsent to sex. 123 One study showed that a significant percentage of
women considered behaviour the most important way to refuse sex. 124.
Thus, one may criticize the No Model for limiting the ways women can (and
often do) refuse sex. If many women express nonconsent by not giving
positive signals, by remaining passive, this is problematic for the No Model
since the model equates passivity with consent. However, it is unclear how
great this problem is as other studies show that while men and women
typically consent to sex nonverbally they usually express nonconsent in a
more direct and verbal manner. 125 The research on sexual cues for both
accepting and declining sex is ambiguous in other words; there remains a
risk of inadequate protection under the No Model.

Taken a step further from women who do not express verbal rejection to
women who cannot do so, the No Model has been criticized for not
protecting victims who experience peritraumatic reactions. 126 That is
psychological and physiological reactions during the traumatic event itself
as opposed to post traumatic stress where reactions come after the event.
Several studies show that paralysis and dissociation are common responses
among rape victims. 127 Since the No Model requires verbal resistance, it is
criticized for leaving these victims without protection. 128 However, these
studies show that women experiencing a high level of dissociation are more
likely to believe their life was in danger 129 and those experiencing
temporary paralysis are considerably more likely to report physical restraint,
perceived threat to life, being attacked by a stranger and sustaining physical
injury during the attack.130 These findings seem to make the critique against
the No Model largely unjustified since the model does not require verbal
refusal in situations involving violence or threat thereof. 131 Based on the
research it seems unlikely or unusual for the most common victim of rape

122
In defense of the Yes Model ambiguous body language should not be considered a green
light under the Yes Model either.
123
McGregor, Is it rape?, pp. 208-209
124
McGregor, Is it rape?, pp. 208-209
125
Rosenthal and Peart, The rules of the game: Teenagers communicating about sex,
Journal of adolescence, p. 325 and; McCormick and Jones, Gender differences in
nonverbal flirtation, Journal of sex education and therapy, pp. 271-282; cit. Cowling,
Should communicative sexuality be written into English law on rape?, pp. 57-59,
Contemporary issues in law Vol. 6 Issue 1
126
Anderson, Negotiating sex, Southern California law review Vol. 41, p. 105
127
See generally SOU 2001:14, p. 88-90, Anderson, Negotiating sex, pp. 115-117.
128
Anderson, Negotiating sex, Southern California law review Vol. 41, p. 117
129
Griffin et al, Objective assessment of peritraumatic dissociation: psychophysiological
indicators, American journal of psychiatry vol. 154, p. 1085
130
Finn, Paralysis common among sexual assault victims, Family practice news, March 1,
2003, p. 44
131
Estrich, Real rape, p. 103

31
and the one I focus on in this thesis– an adult who is raped by an
acquaintance 132, who sustains little or no injuries extrinsic to the forced
penetration and who is not afraid for her life 133 – to experience temporary
paralysis. As for cases where the victim was attacked by one or several
complete strangers the assessment of the court has a different focus. In these
cases the only feasible defense is usually misidentification, not consent.134

Even though the No model does provide better protection of negative sexual
autonomy than a traditional force-resistance regulation it is deficient in
scope. It provides no protection for someone who is drunk, high on drugs,
mentally ill or mentally handicapped and taken advantage of. It is possible
that Estrich meant for these groups of victims to fall under a lesser sexual
offence, though this is speculation on my part. Estrich makes no comment at
all about these potential groups of victims she does however explicitly state
that misrepresentation of material fact and extortionate threats negate
consent.135 This amendment is important as these victims would otherwise
not be protected either, the fraud or threat would make victims refrain from
verbal refusal. Estrich argues there should be liability for “at least those
non-traditional rapes where the woman … submits only in response to lies
or threats which would be prohibited were money sought instead.” 136

Finally, the No Model may be criticized for requiring victims to verbally

refuse sex to have recourse to the court unless a vitiating factor is present. It
is thereby the responsibility of the person subjected to advances to decline
such in a manner the court finds acceptable and not the responsibility of the
person seeking sex to await affirmative consent. The presumption is in other
words consent. It may be questionable if this is acceptable or at least
desirable for a legislation that seeks to protect negative sexual autonomy.

It is preferable from an ethical and educational point of view to require men

to await positive signals of sexual interest instead of allowing them to go
ahead until they meet verbal resistance. However, I believe the No Models
greatest deficiency in protecting negative sexual autonomy lies in an
incomplete catalogue of vitiating factors. After all, it is no less reprehensible
taking advantage of someone who has the mental capabilities of a five-year-
old or someone too drunk to realize what is going on because the victim said
or signalled yes to sex. When wanting to protect negative sexual autonomy,
even more important than requiring positive signals is in my opinion having
a robust list of vitiating circumstances that tell the court when a yes does not
mean yes and when the absence of an uttered no does not mean consent.

132
Bryden et al, Rape in the Criminal Justice System, Journal of criminal law and
criminology vol. 87, p. 1203 note. 56; cit Bryden, Redefining rape, p. 17 note 191
133
Bryden, Redefining rape, Buffalo criminal law review vol. 3, note. 198
134
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 351. See also Estrich,
Real rape, p.50 and note 84 where she lists cases where the attacker was a stranger and the
courts stated that consent was not the issue.
135
Estrich, Real rape, p. 103
136
Estrich, Real rape, p. 103

32
5.1.2 Rights of the accused/legal security
One argument in favour of a strong expressive model such as the No Model
is that it provides men some protection from false accusations – a woman
cannot express consent and later in court argue there was no consent (unless
the situation involved a vitiating circumstance of course).

Under the previous heading, I discussed the critique against the No Model
for only allowing verbal rejection and not behavioural rejection to negate
consent even though studies show that women often use nonverbal
communication to convey both consent and nonconsent.
The mentioned studies have been used to criticize the No Model from a
legal security perspective as well. Since women (and men) often consent
behaviourally, some commentators question whether verbal rejection can
establish guilt beyond a reasonable doubt arguing that no does not always
mean no. 137 These commentators cite studies that show that women
sometimes say ‘no’ even when they want sex; they perform so-called ‘token
resistance’. 138 In the arguably most well known study 39 percent of the
women reported having engaged in token resistance at some point. 139 Yet
this study and others like it provide poor foundation to disqualify verbal
rejection. The majority of the women (60.7%) reported they had never
engaged in token consent and of those that had, more than three-fourths had
only done so rarely namely fewer than five times. 140 In other words when a
woman said no it meant no in the overwhelming majority of instances.
Furthermore, in rough numbers one fifth said no due to some form of
inhibition (for example moral or emotional concerns), another fifth said no
for practical reasons (ex. fear of sexually transmitted diseases or appearing
promiscuous) and finally one fifth said no for game-playing reasons (ex.
anger with a partner, wanting to be in control). 141 It seems these women
merely desired sex. They did not choose/consent to sex for a wide variety of
reasons and rape law should protect their choice. 142

Consequently, it seems sound that verbal rejection can establish the actus
reus element of the rape crime. The fact that some or even many men
believe that women say no and mean yes, does not make it reasonable to
think so and should certainly not give men a right to act accordingly. How
do these men suggest women say or manifest no when this word will not do.
It cannot be reasonable to require women to physically resist because men
choose to believe no means yes. What if men believe physical resistance is
also only token resistance, in one study one third of the men approved of

137
McGregor, Is it rape?, pp. 205-208
138
McGregor, Is it rape?, pp. 207-208
139
Muehlenhard and Hollabaugh, Do women sometimes say no when they mean yes?, p.
878; cit. Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 340
140
Muehlenhard and Hollabaugh, Do women sometimes say no when they mean yes?, pp.
877-878; cit. Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 340
141
Muehlenhard and Hollabaugh, Do women sometimes say no when they mean yes?, pp.
877-878;, cit. Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 340
142
See McGregor, Is it rape?, p. 206

33
using force to get sex when a partner had a change of mind 143 – what
options are women then left with, resistance to the utmost? Men who
interpret no to mean yes must at least be aware they might be wrong.
Considering the terrible odds against no meaning yes and the harm caused if
one is mistaken, these men are reckless in the absence of extremely
convincing evidence to the contrary. 144

Verbal refusal draws a bright line between lawful and unlawful behaviour,
which is positive from a legal security perspective. 145 Men are made aware
of nonconsent just as men who encounter physical resistance are made
aware of nonconsent. Verbal refusal also provides courts with a
corroborative of nonconsent (evidence of the victim’s nonconsent) and the
perpetrator’s intention to have non-consensual sex since the refusal is
audible to him. 146 This helps mitigate difficulties in the fact-finding process,
courts are not left entirely to the parties’ subjective mindsets. 147

There is always a risk that the complainant or the defendant lies about the
existence of a verbal refusal. Lies however, present equally great problems
for other rape legislation models including traditional force-resistance
models; threats of violence leave no physical marks. In cases where there is
no physical evidence of violence, lies will hamper a court’s fact-finding
process equally whether it applies a force-resistance model or a model based
on lack of consent.

A positive aspect of the No Model when it comes to legal security is that it

opens up for grading rape acts. Estrich states where violence was used or
life was threatened the rape may be considered aggravated. 148 It is
reasonable that a violent rape should carry a higher sentence than a non-
violent rape. The violent rapist violates two interests the state seeks to
protect, sexual autonomy and freedom from violence. The general
perception is also that violent rapes are more abhorrent and deserves harsher
punishment. 149

There is however, another matter to consider when applying the No Model

and that is how long an expressed no reigns over a situation. If sex occurs
directly after a verbal refusal the case for rape is strong, yet this assertion
becomes progressively weaker the more time passes. 150 If a woman refuses
sex, but one or several hours later behave in a way that indicates she has
changed her mind, her previous ‘no’ should not still reign – people do

143
McGregor, Is it rape?, p. 212
144
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 340
145
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 343
146
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 343
147
Bryden, Redefining rape, Buffalo criminal law review vol. 3, pp. 336-337
148
Estrich, Real rape, p. 103
149
Dripps, Beyond rape: An essay on the difference between the presence of force and the
absence of consent, Columbia law review vol. 92, p. 1790. See also Jeffner, Liksom
våldtäkt, typ. Om ungdomars förståelse av våldtäkt. (On adolescents view of real rape as an
act that involves violence.)
150
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 341

34
change their minds. 151 For Estrich repeated requests are inherently
coercive. 152 She does not clarify how much time must pass before repeating
a request is acceptable. One thing is clear though, repeated requests in close
succession amount to coercion according to Estrich. 153

The prominent commentator Bryden believes women should have to repeat

their refusals even when requests/attempts come in close succession. Bryden
argues: “the proper remedy for requests that are merely tiresome is to leave,
not to call the police”. 154 Although Bryden objects to this kind of boorish
behaviour, he does not believe it should establish liability for rape. Bryden
sees repeated attempts to have sex merely as nagging so long as the woman
is free to leave. Seen in this light imposing a prison sentence seems unduly
harsh. Yet seen from the victim’s perspective this behaviour may very well
be intimidating, when someone repeatedly disregards a no a woman might
correctly think this man will not take no for an answer or let her walk away
for that matter. Bryden’s position undermines the very core of the No
Model, which is to demand respect and give weight to women’s words –
women are required to say no but need do no more. Bryden’s view that
refusals need to be repeated when time has passed and behaviour indicative
of consent has been conveyed is reasonable. Repeated requests/attempts in
close succession however amount to coercion in my understanding.

5.1.3 Liability for negligence

Mens rea is divided into dolus and culpa – intent and negligence. Dolus is
further divided into purpose, knowledge and recklessness. There is general
agreement that these three forms of mens rea result in criminal liability
whereas negligence liability is more controversial. 155

Under the No Model, negligence is sufficient to establish mens rea. 156 The
harm caused victims is sufficiently grave and the need for added incentive
urgent enough to warrant holding negligent men liable according to
Estrich. 157 Men are negligent when they do not take a no to mean no. 158

Liability for rape based on negligence is an interesting topic that I will

discuss further below under the Yes Model. I do not feel the need to discuss
it here as I have previously argued that when a man proceeds to have sex
with a woman who verbally refuses he is not merely negligent; he is
reckless in the absence of extremely convincing contrary evidence. 159

151
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 341
152
Estrich, Real rape, p. 41; cit. Bryden, Redefining rape, p. 341
153
Contrasting with suspect’s Miranda rights she says ” ”no” must mean no, and
questioning must be terminated.” Estrich, Real rape, p. 41
154
Bryden, Buffalo criminal law review vol. 3, Redefining rape, p. 343
155
McGregor, Is it rape?, p. 197
156
Estrich, Real rape, p. 98
157
Estrich, Real rape, p. 98
158
Estrich, Real rape, p. 103
159
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 340

35
5.2 The Yes Model
A number of scholars propose requiring affirmative consent to sexual
acts. 160 I will examine a model proposed by Joan McGregor, which I find to
be an elaborate and robust account of consent. This is a hybrid (or a weak
expressive) model, in addition to requiring affirmative expressions – verbal
or behavioural – there must exist an intention to consent.161

5.2.1 Sexual autonomy

The Yes Model goes further when it comes to protecting negative sexual
autonomy than the No Model. Victims neither need to physically nor
verbally resist. In the previous chapter, I explained that studies show that a
common response among rape victims is to cry or to become passive. The
Yes Model protects these victims.

McGregor’s model distinguishes between aggravated and nonaggravated

rape. Aggravated rape involves weapons or physical abuse or threat of
physical abuse. 162 By distinguishing the offences, the model acknowledges
that sexual violations achieved by use of violence are more serious than
sexual violations accomplished by other means while still recognizing the
latter as serious enough to warrant criminal sanctions. 163 The state can
punish aggravated rape more severely and deservedly so as in these cases
the perpetrator violates his victim’s negative sexual autonomy as well as her
right to be free from violence. In addition, chances for conviction of
unaggravated rape increase because the court (or jury) is not only left with
the choice of acquittal or placing an unaggravated rape in the same category
as the most violent of rapes. 164 The division also makes it possible to focus
on different elements of the rape crime, which this model does. For
aggravated rape the focus is on the violence, consent is not an issue. 165 The
focus of unaggravated rape is on the other hand consent.166

Historically most statutes defined rape as “sexual intercourse with force and
without consent, many statutes still use this definition.” 167 McGregor
objects to this conjunction. It seems redundant to require both ‘with force
and without consent’. Outside sadomasochistic practices, the presence of
force should imply the absence of consent though the absence of force
should not imply consent. 168 If the man had consent, why did he need to use
force? Society condemns violence with few exceptions; the question is why
courts have so often been willing to accept violence in sexual situations.

160
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 343
161
McGregor, Is it rape?, pp. 126, 130
162
McGregor, Is it rape?, p. 68
163
McGregor, Is it rape?, p. 69
164
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 345
165
McGregor, Is it rape?, p. 245
166
McGregor, Is it rape?, p. 69
167
McGregor, Is it rape?, p. 47
168
McGregor, Is it rape?, p. 48

36
McGregor argues the law should instead make it clear that sex is
incompatible with violence. 169

This conjunction has led to unreasonable outcomes such as acquittals where

the element ‘with force’ was fulfilled but not ‘without consent’ simply
because the victim did not physically resist. This disregards valid reasons
for not resisting such as fear of (further) violence and peritraumatic
paralysis. The reverse situation – the court has found the element ‘without
consent’ fulfilled but no force was used – has also led to acquittals. 170 Yet if
it was apparent that there was no consent and the court is satisfied the
defendant had the requisite mens rea there is no justification for an acquittal.
For the above reasons, McGregor’s suggestion of the crime ‘aggravated
rape’ where consent is not an element seems sound. The only problem is the
previously mentioned practice of sadomasochism. McGregor recognizes this
problem and does not propose a ban on or targeting of those who engage in
sadomasochistic practices as this would limit positive sexual autonomy
without anyone feeling harmed and having complained. 171 If a putative
victim files a complaint on the other hand, the defendant cannot use consent
as a defence to sexual violence save for the slightest of injuries. This means
that the individuals who engage in such activities – and are on the harming
end of the practice – run a risk of legal reprisals by doing so. 172 As
McGregor argues, the harm risked by allowing belief in consent for sexual
violence as a defence is great – assuming the vast majority of women are not
masochists – and the use of this defence very common while the loss by not
allowing it is not that great.173 Even masochists would be worse of if the
state allowed any amount of violence as long as consented to.174 Again, it
should be remembered that criminal law does not allow consent to excuse
violence in other contexts.175

I sympathize with McGregor’s wish to hinder violent rapist from using

consent as an excuse. Furthermore, one can certainly ask how much
violence should be acceptable in the name of sex even when it is consensual.
Take ‘sex’ out of the equation and few would consider consent to excuse
violence to any greater extent, outside some specific sports. I believe it is
correct to hold those who cause moderate to grave injury criminally
responsible even when injury occurs in the context of consensual sex. 176 Yet
violent consensual sex should not be labelled rape because the injury rape
law seeks to avoid – violation of negative sexual autonomy – is missing. In
these cases no one’s choice is overridden, there is not even an intention to
override another’s choice because the masochist is getting what he or she

169
McGregor, Is it rape?, p. 49
170
McGregor, Is it rape?, p. 61
171
McGregor, Is it rape?, p. 245
172
McGregor, Is it rape?, p. 245
173
McGregor, Is it rape?, pp. 244-245
174
McGregor, Is it rape?, p. 244
175
McGregor, Is it rape?, p. 243
176
For a discussion on this topic see Duff who argues violent sexual acts are degrading
even if carried out with consent in Harms and wrongs, Buffalo criminal law review, pp. 13-
45

37
desires. These acts should probably be prosecuted as assault and battery
instead. To label them rape in order to withdraw the possibility of a consent
excuse from those who achieve nonconsensual sex by means of violence, in
essence to solve evidentiary problems, is problematic and should be
avoided. 177 The situation is different when events unfold as in People v.
Jovanovich, a case discussed by McGregor. In this case the defendant
completely disregarded the fact that the applicant invoked the agreed upon
‘safeword’ and subjected her to much graver violence than she had initially
consented to. In this case, it would be correct to invoke rape liability as what
started out as consensual sex turned nonconsensual.

As mentioned earlier consent is the focus of all other types of sexual

violations amounting to rape according to the Yes Model. Individuals may
give consent either verbally or behaviourally and they must intend to
consent.178 Consenting behaviour alone will not do, such a regulation would
fail to protect the person’s autonomous choice; consent has to emanate from
within a person. 179 The fact that expression is necessary but not sufficient
makes the Yes Model an example of a hybrid (or a weak expressive) model.
McGregor states that “[T]he person must have a certain mental state to
consent, namely to intend their acts or words to be consenting.” 180 A
‘positive inner attitude’ is not necessary though, 181 meaning one need not
desire sex to consent to it. McGregor makes it clear that desire is not
consent 182 and there is a difference between unwanted and nonconsensual
sex. 183

McGregor is equally convinced consent cannot be solely a mental state

because the way consent protects negative sexual autonomy is by working
as permission. 184 In order to have this function consent needs to be
communicated otherwise the defendant has no reason for changing his
behaviour – he should stay clear of his potential victim. 185 Furthermore, she
does not understand how the victim herself much less a defendant or court
can tell desire and choice apart if they are both mental states.186 The way we
tell our desires apart from our choices is when we act on them.

I will examine the alleged shortcomings of the attitudinal model in the next
subchapter, as for the critique against (strong) expressive models I
understand McGregor’s scepticism. Her model requires an intention to
consent because she wants to ensure consent behaviour does not happen by
mistake or due to some pressure. Expressive models require more than
expression however, they require expression under circumstances that are

177
Asp, Sex och samtycke, pp. 161-162
178
McGregor, Is it rape?, p. 130
179
McGregor, Is it rape?, p. 123
180
McGregor, Is it rape?, p. 130
181
McGregor, Is it rape?, p. 126
182
McGregor, Is it rape?, p. 206
183
McGregor, Is it rape?, p. 126
184
McGregor, Is it rape?, p. 125
185
McGregor, Is it rape?, pp. 124-125
186
McGregor, Is it rape?, p. 122

38
legitimate. Furthermore, it seems a weak expressive model (or hybrid views
in general) serves no purpose because when there is contradiction between
intention and expression – when a person does not intend to convey what
the expression is perceived to mean by observers 187 – a weak expressive
model such as McGregor’s has to decide which element is decisive. 188 If
expression is decisive then this is in fact an expressive model, if intention is
decisive then it is an attitudinal model. 189 I believe expression is decisive
under this model as McGregor herself calls it a performative (another word
for expressive) model and emphasises consents function as permission to
sex (which must be communicated) and that we tell desire from choice by
the latter being expressed. I will therefore keep referring to this model as
expressive.

The fact that affirmative consent can be given behaviourally has led
Anderson to criticize the Yes Model for easily collapsing into the No
Model. 190 One problem with behavioural consent is male misinterpretation,
which women have to counteract by verbal resistance. Extensive research
shows men to be exceedingly bad at interpreting women’s body language.
Men often interpret women’s body language as conveying sexual interest
where women have no such intention. 191 The misinterpretation only goes in
one direction, in other words men do not believe women are uninterested in
them sexually when they in fact are interested.192 The research also shows
that this is not attributable to the natural limits of human communication;
women are quite good at interpreting men’s body language. 193 This could
lead to behaviour seen as conveying affirmative consent – first by the
defendant and later by a mostly male court or jury – just being the product
of male misinterpretation.

However, the very fact that the Yes Model requires women’s active
participation should mitigate male misinterpretation. McGregor requires
more than ambiguous cues that a woman is interested in sex, in fact she
requires those seeking to have sex to go ‘beyond symbolically appropriate
behaviour to ensure consent was given.’ 194 A man may not derive consent

187
In the interest of protecting negative sexual autonomy a reasonable observer-standard
should be applied. If defendants’ perceptions governed what victim’s expressions meant it
would encourage any matter of fantasies entertained by the defendant to determine the
existence of actus reus. Furthermore, it would be unreasonable to let the defendant’s
perception of events decides the existence of both mens rea and actus reus. The reasonable
observer standard is suggested by Westen in The logic of consent. The diversity and
deceptiveness of consent as a defense to criminal conduct, pp. 71-75
188
Westen in The logic of consent. The diversity and deceptiveness of consent as a defense
to criminal conduct, pp. 70-71
189
For a discussion on why hybrid views do not work and why the type McGregor suggests
– one that does not require a mental state of choosing sex but a mental state of intention – is
even more problematic see Westen, The logic of consent. The diversity and deceptiveness
of consent as a defense to criminal conduct, pp. 162-164
190
Anderson, Negotiating sex, Southern California law review vol. 41, p. 105
191
Anderson, Negotiating sex, Southern California law review vol. 41, p. 117
192
Anderson, Negotiating sex, Southern California law review vol. 41, p. 118
193
Anderson, Negotiating sex, Southern California law review vol. 41, p. 119
194
McGregor, Is it rape?, p. 135

39
from the fact that he is kissing or fondling his partner while she shows
neither disinterest nor interest. Instead, McGregor gives the example of a
woman undressing her partner and sexually touching him as indicating
affirmative behavioural consent.195 Naturally, no other circumstances
pointing to nonconsent – such as a previously made threat – is allowed to be
present.

The importance of considering male misinterpretation is questioned

however. The prominent commentator Bryden argues that most mistakes
about consent are legally irrelevant, such as believing that the woman will
change her mind and consent during the intercourse or believing the victim
will not report the rape to the police. 196

Another possible problem with behavioural consent is that a person

engaging in non-penetrative sexual acts might only want to consent to those
acts 197 yet the Yes Model sees undressing your partner and sexually
touching him as expressive consent to sex. Anderson criticizes that the
woman who does not want to proceed beyond sexual foreplay must resist
verbally or physically also under the Yes Model. 198

Requiring verbal consent for the specific act of penetration as Anderson

suggests would solve this problem. 199 Such a requirement would make clear
that consent to foreplay is not consent to penetration. However, requiring
verbal consent sharply deviates from sexual customs. Studies indicate that
women as well as men typically consent to sex nonverbally whereas
nonconsent tends to be expressed in a more direct manner. 200

A model based on affirmative consent is preferable to one based on physical

or verbal resistance from a sexual autonomy perspective as it requires men
to await positive verbal or behavioural signals before proceeding with
sexual acts instead of letting men proceed without any signal the advance is
welcome and until they meet resistance. Under a model that requires
affirmative consent, there is a rebuttable presumption of nonconsent. 201 This
is rational for a legislation that aims to protect negative sexual autonomy. It
is reasonable to refrain from sexually touching or penetrating other people
until they signal such acts are welcome.

However, for many situations involving a violation of sexual autonomy

requiring affirmative consent provides no more protection than a legislation

195
McGregor, Is it rape?, p. 129
196
Bryden, Redefining rape, Buffalo criminal law review vol. 3, pp. 349-350
197
Anderson argues that the rise of HIV and other sexually transmitted diseases have
increased the practice of engaging in non-penetrative sexual acts which means there is now
even more reason not to read in consent to intercourse from for instance petting. Anderson,
Negotiating sex, Southern California law review vol. 41, p. 120
198
Anderson, Negotiating sex, Southern California law review vol. 41, p. 121
199
Anderson, Negotiating sex, Southern California law review vol. 41, pp. 107, 122
200
Cowling, Should communicative sexuality be written into English law on rape?, pp. 57-
58, Contemporary issues in law Vol. 6 Issue 1
201
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 345

40
requiring victims to say no. For instance, when subjected to coercion a
victim will just as easily say yes to avoid the alternative as refrain from
saying no. A deceived victim is no better off because the law requires her
affirmative consent. Therefore, it is as important to clarify when a yes does
not remove criminal liability. One of the biggest strengths of the Yes Model
is the robust list and elaboration of invalidating factors.

Factors that invalidate consent under the Yes Model comprise of the well
established such as use or threat of violence and underage. 202 It also
includes the slightly less established factors mental illness and retardation
depending on the severity of the condition. A person incapable of
understanding the nature and consequences of engaging in sex cannot
legally consent. 203 An adult having the mental capabilities of a small child
will be unable to effect legal consent while a high functioning mentally
disabled individual will be able to consent legally. 204

The Yes Model also protects the intoxicated or high victim. 205 The
requirement of affirmative consent means that the passive victim does not
by that very fact signal consent, and passivity is common after large intake
of alcohol. This does not mean that as soon as a person drinks alcohol or
takes any kind of drugs their consent is without legal effect. 206 People of
both sexes use alcohol to relax, get up their courage, get ‘in the mood’ for
legitimate sexual interactions. Yet, McGregor makes it clear that once
someone cannot carry on normal functions such as standing up or carrying
on a conversation this person cannot legally consent. 207

The Yes Model also extends its protection to many victims of fraud.
Traditionally any type of fraud has been acceptable when securing sex; this
has begun to change though. However, even states that acknowledge fraud
as capable of invalidating consent to sex, apply fraud in a much narrower
fashion in rape cases than in cases involving property. Whereas both ‘fraud
in factum’ and ‘fraud in inducement’ are illegal when trying to acquire
property, in those states that see fraud as an invalidator of sexual consent at
all only fraud in factum is usually illegal. 208 The Yes Model includes
deception as a factor that invalidates consent but has a different approach to
fraud in sexual situations than dividing fraud into ‘in factum’ and ‘in
inducement’. McGregor argues that this division is in itself problematic as
whether one perceives fraud as ‘in factum’ or ‘in inducement’ depends on
how much one builds into the description of what is consented to.209 Take
the case of People v. Hough where a man had sex with his twin brother’s
girlfriend posing as her boyfriend. In this and similar cases several courts

202
McGregor, Is it rape?, pp. 69, 159
203
McGregor, Is it rape?, pp. 156-157
204
McGregor, Is it rape?, pp. 156-157
205
McGregor, Is it rape?, pp. 146-147
206
McGregor, Is it rape?, p. 147
207
McGregor, Is it rape?, p. 150
208
McGregor, Is it rape?, p. 182. For an explanation of the two forms of fraud see note 77
of this thesis.
209
McGregor, Is it rape?, p. 185

41
have seen the situation as one of fraud in inducement – the women consents
to the act but is induced to consent by the misrepresentation. Yet when we
give a more robust description of what X consented to – she consented to
sex with her boyfriend and got sex with someone else – the situation is one
of fraud in factum. 210

However, it is not as simple as saying that both fraud in factum and fraud in
inducement should invalidate consent. McGregor realises that depending on
how much we build into the description, more or less any minor deception
can become a matter of fraud in factum. 211 For example, David falsely
alleges to be a doctor whereby Lisa believes she is consenting to ‘David
who is a doctor’ not to ‘David who is an accountant’.

Even if it is correct to understand fraud in factum only as deception relating

to the sexual act itself, 212 for instance the victim believes she is consenting
to a medical examination and is subjected to penile penetration instead. The
division of ‘in factum’ ‘and ‘in inducement’ does not reflect a difference in
harm to the victim or blameworthiness on the part of the defendant. The
victim penetrated by a stranger posing as her husband – argued to be fraud
in inducement – may be no less harmed than the patient penetrated by her
gynecologist under the guise of inserting a medical instrument during
examination (fraud in factum). Both will arguably feel humiliated and
violated, both will risk unwanted pregnancy and venereal disease.

McGregor argues that whether deception should be unlawful depends

instead on two things. First, causal effect between the misrepresentation and
the consent – what makes fraud wrong is that it causes people to consent
where they otherwise would not.213 Using my above examples, the woman
in People v. Hough would not have consented to sex had she known it was
not her boyfriend. In the example with Lisa and David there might not be a
causal effect between the misrepresentation and the consent. Lisa might
happily consent to sex with David regardless of his profession.

Yet even if Lisa had sex with David because his lie made him more
attractive to her, this example would not be criminal fraud under
McGregor’s model because causal effect is not enough to warrant criminal
sanction. This is where McGregor’s second criteria comes in which has to
do with ‘expectations in a potential sexual relationship’. 214 Most people
exaggerate or embellish on their person when trying to get a partner. Trying
to look better, more accomplished, better off or more emotionally invested
is common. Yet few if any would like to send someone to prison for false
professions of love for instance. This kind of minor deception, making
oneself more attractive is different in kind to fraud that invalidates consent

210
McGregor, Is it rape?, p. 185
211
McGregor, Is it rape?, p. 188
212
Westen makes a good argument for this in The logic of consent: the diversity and
deceptiveness of consent as a defense to criminal conduct, pp. 195-196
213
McGregor, Is it rape?, p. 189
214
McGregor, Is it rape?, p. 189

42
to sex under the Yes Model. A woman can expect that her date try to come
off as more appealing than he really is, her boyfriend more emotionally
invested. She should not have to take that her boyfriend is substituted for
someone else, to name but one example of fraud.

Finally, the Yes Model extends its protection to victims of coercion beyond
threats of violence in certain situations. McGregor suggests a somewhat
different understanding of coercive threats than the standard approach of
viewing proposals that make the recipient worse off as threats and proposals
that places the recipient in a better position as offers. 215 McGregor sees that
for instance, when someone exploits a position of trust even a seeming offer
can be coercive. In foster parents’ or teachers’ proposals of benefit for their
wards or pupils in exchange for sex, lies implicit threat of not giving the
children what they have a right to; shelter, food or the grade they deserve. 216
Parents, teachers and the like may not condition anything on their wards’
sexual compliance. Neither may people in certain professions condition
performing their job on sexual favour. If for instance a firefighter, lifeguard
or police officer in his official capacity conditions saving someone on
sexual favours, the situation involves a coercive threat. 217 Even if the
proposal makes the victim better off than she would be without it, she and
society at large have a right to expect of these professionals their
unconditional rescue of people in distress. 218 Other situations may involve
coercion as well but McGregor’s explanation of what makes threats coercive
is too lengthy and intricate to go further into within the scope of this
thesis. 219

5.2.2 Rights of the accused

McGregor’s suggested division into aggravated and unaggravated rape has
both positive and negative effects for defendants. The negative aspect arises
for sadomasochists, those who are on the harming end of this practice will
not be able to invoke a consent defence for any but the most minor of
injuries. I discussed why punishing consensual sadomasochistic acts in the
same way as violent rapes, even if one believes people should not be able to
consent to more severe sexual violence, should be avoided in the previous
subchapter. Viewing violent rapes as aggravated offences, while retaining
consent as an excuse, is reasonable though. The violent rapist violates an
additional interest the state seeks to protect, the right to be free from
violence and threat.

The Yes Model provides a bright line for those who seek sex to act in
accordance with – they must await positive signals. It places higher
demands on those seeking sex though to be observant and to be able to read
their sex partner’s signals or at least to ask when they are unsure if their

215
McGregor, Is it rape?, p. 169
216
McGregor, Is it rape?, p. 175
217
McGregor, Is it rape?, p. 176
218
McGregor, Is it rape?, p. 176
219
For a more detailed understanding see McGregor, Is it rape?, pp. 164-181

43
partner is consenting. The Yes Model avoids one of the No Models
problems however. As I discussed under the No Model an expressed no gets
progressively weaker the more time passes. ‘No now may not mean no later’
with the accompanying problem of determining how long an expressed no
reigns over a situation. Under the Yes Model, a woman can change her mind
later during an evening and consent to sex but must then signal this change
of mind affirmatively. 220

Expressive models seem preferable from a defendant’s point of view

because here consent is visible to him. However, a defendant will not be
guilty of rape under an attitudinal model either when he has no reason for
believing the sex was nonconsensual, as I will discuss in the next
subchapter. Expressive models may be preferable from the court’s point of
view however, providing corroborative evidence of the applicant’s consent.
Courts need not base factual consent merely on the applicant’s mental state,
knowledge of which is hard to come by. As McGregor says we have no
epistemological insight into other people’s mental states. 221

Under the Yes Model more sexual encounters will amount to rape because
the model lists more actions on the part of the defendant and conditions of
the victim that depending on degree lead to invalidating consent. The Yes
Model also requires more of those seeking sex than other models when it
comes to being observant of your sex partner’s signals and possibly
inquiring about consent. This will arguably lead to more men being tried
and perhaps also convicted of rape. The higher and more rigid demands a
state sets for rape liability the fewer men will be convicted and the slighter
the risk is of convicting an innocent man. However, the fact that a
jurisdiction adds more factors that invalidate consent does not necessarily
lead to less legal security so long as men are made aware of the types of
behavior (which types of threats and exploiting which types of conditions of
the victim) that will invalidate consent. A problem for legal security arises
instead because it is not set in stone (nor could it reasonably be) to which
degree potentially invalidating factors need to be present in order to
invalidate consent. For instance, what degree of intoxication, mental
retardation invalidates an expressed (factual) consent. This brings about
some level of insecurity for potential offenders. Every rape legislation
model entails some level of insecurity. Even traditional force-resistance
models do not set the exact levels of violence required to incur rape liability,
is threatening a slap or a punch sufficient for rape liability for instance. This
is determined through case law. However, the more invalidating factors a
jurisdiction employs the more types of deliberations of degree it will have to
make.

Finally, there is a risk that the Yes Model deviates too much from the
general public’s perception of what amounts to rape, especially when it
comes to the extensive understanding of coercive threats and the
requirement of affirmative signals. Some commentators argue it is unjust to
220
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 345
221
McGregor, Is it rape?, p. 122

44
send a man to jail simply for not awaiting affirmative signals. 222 If the gap
between the law and the publics understanding of rape is to great there is a
risk of the law not being conformed with, for instance by juries disregarding
the law, in extension making it void. 223 I will discuss this issue further in my
conclusions.

5.2.3 Liability for negligence

Under the Yes Model, negligence is enough to warrant rape conviction. 224
Since the harm caused to victims is great and irreversible even if made by
mistake, the law should give men incentive to act with care and prudence in
sexual situations. If unreasonable beliefs exonerate incentives may go in the
opposite direction encouraging men to remain ignorant, to hold onto sexist
ideas of women and consent. 225

The argument against liability for negligence has traditionally been that it is
unfair to convict the stupid man who might be doing the best he can and
ineffective from a deterrence perspective. 226 Yet negligence is not the same
as stupidity; highly intelligent people can be careless too. Negligence
liability is thus not about convicting those who lack capacity to behave
reasonably, in such cases other defences will be open for instance
diminished capacity. 227

Negligence liability is instead about punishing those who could do better but
did not. When punishing negligence the aim is to install habits of care in
people. 228 This effort is no less rational than trying to deter the intentional
criminal, someone whose behaviour may originate from inability to feel
empathy to intoxication. 229

A valid reason to refrain from criminalizing negligence is thus not that it

cannot be deterred but that criminal sanctions may be too harsh for negligent
acts. 230 However, our justification for punishing intentional criminals does
not rest upon scientific findings that intentional criminals have more
freedom in their actions than negligent perpetrators do yet the law presumes
free choice except for the narrowly defined legally insane. 231 These
perpetrators may also be doing their best and a negligent defendant –
intelligent or not – has usually made a blameworthy conscious decision
earlier to refrain from proper precautions. 232

222
Bryden, Buffalo criminal law review vol. 3, Redefining rape, p. 348
223
Bryden, Buffalo criminal law review vol. 3, Redefining rape, p. 347
224
McGregor, Is it rape?, p.202
225
McGregor, Is it rape?, p.202
226
Estrich, Real rape, p. 97
227
Baron, I thought she consented, p. 14; cit. McGregor, Is it rape?, p. 201
228
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 323
229
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 323
230
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 323
231
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 323
232
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 323

45
As interesting as these distinctions may be in theory in practice the
difference between purpose, knowledge, recklessness and negligence seems
very thin, especially for crimes such as rape. 233 Rape is not an act
committed absentmindedly like running a red light. In realistic scenarios,
the unreasonable mistakes will have more in common with recklessness
than absentmindedness. 234 Furthermore, the outcome of a case will likely
depend more on the sensibilities and prejudices of the court or jury. A sexist
court may see an unreasonable but honest mistake or even a reasonable
mistake where a court without such bias sees recklessness or even the
purpose to commit rape. 235

Furthermore, this defence will likely have little relevance in practice. In

most rape cases, the defendant will argue he had consent 236 and the
prosecution will argue the rape was intentional because that is how the
victim perceived the situation. 237 The defendant has no reason to concede
there was no consent; this only puts him in a less favourable light. When
claiming honest mistake his opportunity to invoke the victim’s sexual
history is also limited to what he knew at the time of the sexual act, arguing
for instance her bad reputation was at least partly the reason for his
mistake. 238. This defence will likely only be used when there is no question
that the victim did not consent and in such cases, the court is unlikely to
believe the defendant did not even consider there was no consent.

5.3 Attitudinal consent

When I examine the two different views of expressive consent, I use two
accounts of expressive consent proposed by legal theorists. When I examine
attitudinal consent, I will not be examining an attitudinal model per se. I will
base my examination of attitudinal consent on Westen’s analysis of consent
instead. Westen has written a much needed and appreciated account of the
different conceptions of consent and provides an elaborate description of
attitudinal consent. 239

233
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 324
234
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 324
235
Dripps, Beyond rape: An essay on the difference between the presence of force and the
absence of consent, Columbia law review vol. 92, p. 1790
236
Fairstein, Sexual violence: Our war against rape, p. 137; cit. Bryden, Redefining rape,
Buffalo criminal law review, p. 351
237
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 350
238
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 351
239
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2 and Westen, The logic of consent: The diversity and deceptiveness of
consent as a defense to criminal conduct

Heidi Hurd provides the most well known account of attitudinal consent in legal literature,
frequently referred to by other legal theorists when discussing attitudinal consent. The
reason I do not base my examination on her article is that Westen provides the more
pragmatic account of attitudinal consent as well as giving the better arguments for applying
an attitudinal consent model. Hurd gives, in my opinion, an unnecessarily complicated
account of attitudinal consent. She must also make a number of exceptions from her own
description of attitudinal consent in order to make her model work satisfactorily.

46
5.3.1 Sexual autonomy
The attitudinal consent model has merit because it sees consent as
something emanating from within a person, something necessarily
deliberate, exercising the will. 240 The advantage from a sexual autonomy
perspective is that an individual cannot consent by mistake. 241 Attitudinal
consent seems intuitively correct because one has to make a choice in one’s
mind before one can express said choice. Even expression of consent only
has meaning because it refers to the underlying state of mind. 242

Therefore, I believe McGregor is wrong when she argues it is possible the

attitudinal model fails because it is questionable whether we can tell desire
apart from choice when both are mental states, the way we turn desire into
choice is by acting on it. 243 For example, I can desire to go jogging because
I know it will be good for me. Yet in order for me to turn this desire into a
choice, I have to do the act of jogging. It is the act that says that I have made
a choice according to McGregor. The act may be how the world knows I
have made a choice but I believe McGregor is wrong in thinking that the act
itself turns desire into choice. You do not all of a sudden find yourself out
running. You have previously made a conscious decision to go out jogging
before the act actually happens. We control our choices not our desires, that
is how we tell the two apart.

It can however be difficult for a court to tell when desire turns into choice
under the attitudinal model. It is easier to tell under an expressive model
since there when desire turns into choice it is communicated. Yet, under the
attitudinal model when a situation involves no vitiating circumstances and
the defendant has shown no contempt for the victim’s autonomy there will
be no liability due to lack of mens rea so the court will not have to
determine the victim’s mental state. Assessing when desire turns to choice is
however relevant when the defendant shows disregard for the victim’s
autonomy (for instance disregards her communication of nonconsent) or
another vitiating factor is present and the question arises whether to hold the
defendant liable for rape or attempted rape. If the situation involves for
instance violence, the defendant will be guilty of rape if the applicant
consents because of the violence even if she does desire sex. If she consents
not because of the violence but because she chooses to act on her desire the
defendant will be guilty only of attempted rape. Whenever she chooses sex
for a reason that does not invalidate consent in the jurisdiction at hand the
defendant will only be liable for attempted rape in spite of the existence of
force. 244

240
Hurd, The moral magic of consent, Legal theory vol. 2, p. 125 and McGregor, Is it
rape?, p. 123
241
McGregor, Is it rape?, p. 123
242
Westen, The logic of consent: The diversity and deceptiveness of consent as a defense to
criminal conduct, p. 5
243
McGregor, Is it rape?, p. 122
244
See Westen’s discussion on the Bink case in Westen, Some common confusions about
consent, Ohio state journal of criminal law vol.2, pp. 343-345

47
It could prove a problem for negative sexual autonomy if prosecutors
habitually charged defendants only for attempted rape because they
considered the distinction between desire and consent too difficult to
establish. It could also risk the defence making outrages claims of desire-
induced consent in spite of the most grave of invalidating circumstances
being present. In my understanding, the possible existence of desire or other
valid reason to consent to sex will be irrelevant whenever the vitiating factor
belongs in the competence category. Certainly, this is true when the victim
cannot give valid consent due to grave retardation or mental illness. The
very idea behind the incompetence category is to protect the victim from her
own choices/desires. I also question the possibility of successfully arguing
the applicant consented for another (valid) reason when the situation
involved fraud. We cannot know what the victim’s mental state would have
been absent the fraud. 245 When a situation involves coercion though, there is
a possibility that the victim consented for a legally permitted reason like
desire. It is then up to the court to asses the victim’s testimony and the
circumstances of the case to determine if it is reasonable to conclude that the
victim consented because she desired sex not due to the vitiating
circumstance.

A positive aspect of the attitudinal model is that victims are not required to
perform any specific physical or verbal expression to establish nonconsent;
there is no obvious presumption of consent for the victim to overcome. This
is not to say that the victim’s expressions are without relevance. Expressions
by the putative victim are relevant for instance to determine the defendant’s
liability as I have hinted at above and will discuss in detail later in this
subchapter.

Yet since expression is not decisive to determining factual consent critiques

argue this model fails because communication is precisely what protects
sexual autonomy; we have a duty to refrain from sexual acts with someone
else until we have their (audible or visible) permission. 246 Since there is no
verbal or behavioural act that amounts to consent under this model there
will be no justification for altering one’s behaviour and engaging in sexual
acts with another person. 247 Seen in another way, there is concern someone
could subject another to intercourse in spite of expressions of nonconsent
but still not be liable for rape because the putative victim had a mental state
of consent. 248 Such a defendant would be equally blameworthy but it seems
without liability under the attitudinal model. The opposite situation is also a
concern, men who have sex with women who express consent but have a

245
This is also in line with Westen’s explanation that every jurisdiction conditionally
prohibits some pressures while unconditionally prohibiting others, force belonging to the
former category while incompetence and fraud belongs to the latter. Westen, The logic of
consent: the diversity and deceptiveness of consent as a defense to criminal conduct, p. 207.
For an explanation why, see the same work page 240 note 83
246
McGregor, Is it rape?, p. 114
247
McGregor, Is it rape?, p. 124
248
Westen, The logic of consent. The diversity and deceptiveness of consent as a defense to
criminal conduct, p. 153

48
mental state of nonconsent (without vitiating factors being present) seem to
risk conviction under this model. 249

Taking these concerns into consideration the attitudinal model appears

normatively deficient. Indeed, by itself it is because it will convict a man for
having sex with a woman who feigned expressions of consent while
acquitting a man who thought he was having nonconsensual sex but had the
good fortune that his victim consented in her mind (for reasons acceptable
to the state). 250 In practice however, courts apply attitudinal consent in
combination with rules prohibiting attempted rape and requiring mens rea
that cures the above deficiencies. 251 The outcome of the two cases is similar
to the outcome under an expressive model, liability for the man who
subjects his victim to sex he ought to infer she does not choose, no liability
for the man who has sex with a woman who feigns consent. The outcome is
similar but not identical. Under an expressive model, a defendant who
subjects his victim to sex despite her expressions of nonconsent will
invariably be guilty of rape. Under the attitudinal model, the same defendant
could be liable for either rape or attempted rape depending on whether the
victim factually consented to sex due to force (rape) or for some other
legally permissible reason (attempted rape). 252

To clarify the consequences of applying either an attitudinal or an

expressive model I will use two real cases borrowed from Westen. 253 In the
case New York v. Bink, a young prisoner who had previously been raped
(sex by threat of violence) by fellow inmate Bink worked with prison
authorities in order to catch the latter in the act. The young inmate feigned
expressions of nonconsent secretly wanting to be assaulted so the authorities
would catch Bink. Under an expressive model, Bink would be liable for
rape since expression is decisive and the victim expressed nonconsent.
Under the attitudinal model, Bink would be liable for rape if his victim
chose sex because of the threat of violence. In the case at hand, Bink was
not liable for rape because his victim did not acquiesce due to the force but
instead because he wanted authorities to catch Bink. The jurisdiction allows
the putative victim to consent for this reason. Bink should have been liable
for attempted rape though, because he subjected his victim to sex he thought
his victim did not choose (under conditions required by the jurisdiction i.e.

249
Westen, Some common confusions about consent, Ohio state journal of criminal law
vol.2, p. 345
250
Westen, Some common confusions about consent, Ohio state journal of criminal law
vol.2, p. 345
251
Westen, Some common confusions about consent, Ohio state journal of criminal law
vol.2, p. 345

I do not know however whether states actually use the possibility of holding men liable for
attempted rape when they only succeed in achieving dignitary harm under an attitudinal
model.
252
Westen, Some common confusions about consent, Ohio state journal of criminal law
vol.2, pp. 345-346
253
See Westen, Some common confusions about consent, Ohio state journal of criminal
law vol.2, pp. 343-344

49
free of threats of violence). Bink showed contempt for his victim’s sexual
autonomy without actually managing to go against his victim’s free choice.

The case California v. Burnham exemplifies the opposite situation, where

the victim expresses consent but does not legally consent in her mind.
Rebecca Burnham’s husband beat her severely and threatened to injure her
further unless she enticed motorists passing by their house to have sex with
her. Under both expressive and attitudinal models, Rebecca’s husband
would be liable as an accomplice to rape because regardless of whether
Rebecca factually consented in mind or deed or both, no jurisdiction would
allow her to legally consent under these conditions. Since Rebecca
expressed consent and the motorists had no reason to question this
expression they would lack mens rea and in extension liability under either
expressive or attitudinal model.

The attitudinal model enables more fine-tuned grading of liability because it

takes into consideration something expressive models do not – the existence
of primary harm. Both attitudinal and expressive models punish defendants
who cause their victims dignitary harm. A defendant causes dignitary harm
when he disregards his victim’s sexual autonomy; when he subjects his
victim to intercourse he (ought to) infer his victim does not choose under the
conditions required by the jurisdiction. 254 This harm relates directly to a
defendant’s blameworthiness, he knows or he ought to know his actions
cause this harm. Expressive models look only for this type of harm, when
the defendant causes dignitary harm he is guilty of rape. In other words,
under the expressive model the sole function of the punishment is to
penalize blameworthy defendants. 255 The attitudinal model also looks at
dignitary harm but in situations where this is the only harm caused, acts will
instead be punished as attempted rape.256 Consequently, this model also
punishes failure to adhere to women’s expressions albeit with a slighter
punishment.

The precondition for rape conviction under the attitudinal model is instead
the existence of primary harm. This harm arises when someone is subjected
to sex without having subjectively chosen it under the conditions of
freedom, competence and knowledge their jurisdiction entitles them to. 257
We can conclude that the commentators who argue a purely subjective
attitude cannot change legal relationships are incorrect; a subjective attitude
can change legal relationships because it determines the existence of
primary harm. 258 Rebecca Burnham’s husband and Bink both tried to inflict

254
Westen, Some common confusions about consent, Ohio state journal of criminal law
vol.2, p. 345
255
Westen, Some common confusions about consent, Ohio state journal of criminal law
vol.2, p. 348
256
Westen, Some common confusions about consent, Ohio state journal of criminal law
vol.2, p. 345
257
Westen, Some common confusions about consent, Ohio state journal of criminal law
vol.2, p. 346
258
Westen, The logic of consent. The diversity and deceptiveness of consent as a defense to
criminal conduct, p. 152

50
this type of harm but only the former managed because Rebecca chose sex
to avoid violence but the inmate chose sex to get Bink prosecuted for rape.
Those who try but fail to inflict primary harm are equally blameworthy as
those who succeed. Yet the punishment’s function under the attitudinal
model is not only to consider the blameworthiness of the defendant but also
to consider how much punishment the state is justified in handing out due to
the resulting harm. 259 Without primary harm, the state is arguably less
motivated in handing out the harshest punishment. 260 Whether to base
liability purely on the existence of dignitary harm or in combination with
primary harm is not a question of a right and wrong way to construct rape
liability, it is a policy question for states to make depending on what they
consider ought to be the function of the punishment. 261

A possible problem with applying ‘attempted rape’ in this way is that we

usually associate attempted rape with situations of incomplete sexual
intercourse. Using this label to describe completed sexual acts that lack
primary harm as well may cause confusion and it may be problematic to
place two such different situations under the same label. On the other hand,
perhaps two defendants who both do all they can to achieve nonconsensual
sex but fail – one fails to achieve penetration, the other achieves penetration
but with (factual and legal) consent – are equally blameworthy. In terms of
harm to the victim there may not be a great difference either between the
woman subjected to sex she subjectively chose (for legally permissible
reasons) while expressing nonconsent and the woman who evades
penetration she subjectively does not choose.

When examining the two expressive models I argued they extend the group
of potential victims compared to traditional force-resistance legislation,
providing women protection in more situations. Whether the attitudinal
model provides as much or more protection than the two expressive models
will depend largely on the understanding of factors that invalidate consent,
clarifying when a mental state of consent is not sufficient to work as defence
against rape liability. As this is not an attitudinal model per se, enumeration
of such factors is missing but Westen makes it clear they are indispensable
for any consent-based legislation and encompass three categories –
competence, freedom and knowledge. 262

259
Westen, Some common confusions about consent, Ohio state journal of criminal law
vol.2, p. 348
260
Comparison can be made with legislation on murder which is an offence states grade not
only based on defendants’ blameworthiness but also on the existence of primary harm,
which in this case is loss of life. Where the victim survives (i.e. there is no primary harm
only dignitary harm i.e. manifesting contempt for another’s life) states punish offenders for
attempted murder regardless of how blameworthy they are, how hard they tried to achieve
primary harm. States are less motivated to impose full punishment as they have incurred a
lesser loss. Westen, Some common confusions about consent in rape cases, Ohio state
journal of criminal law vol.2, pp. 347-348
261
Westen, Some common confusions about consent, Ohio state journal of criminal law
vol.2, p. 348
262
Westen, The logic of consent. The diversity and deceptiveness of consent as a defense to
criminal conduct, p. 180

51
Whether the attitudinal model will protect women in as many situations as
the Yes Model will depend further on whether liability arises when the
applicant expresses nonconsent or already when she is passive. Westen says
a defendant inflicts dignitary harm when he has intercourse with someone
“in the absence of expressions that reasonably lead him to believe that he is
acting in accord with her desires.” 263 This indicates attempted rape liability
for sex with someone who is passive.

5.3.2 Rights of the accused

The attitudinal model does not provide a bright line for men to act in
accordance with in the same way as expressive models do. Under those
models, certain expressions (or lack thereof) by the victim can make up the
actus reus of the crime. No specific expression by the victim constitutes
(non-)consent under the attitudinal model though. However, a list of
vitiating factors provides lines not be crossed under this model just as it
does under expressive models. Furthermore, Westen argues a person is
liable for attempted rape when subjecting someone else to sexual intercourse
in the absence of expressions that reasonably lead him to believe that he is
acting in accord with her desires.” 264[Emphasis added] This indicates a bright
line at passivity, brought about indirectly by way of rules prohibiting
attempted rape.

This model seems less advantageous from the perspective of the rights of
the accused since the existence of rape depends on the putative victim’s
mindset, into which the accused has no insight. This would create
uncertainty – not even positive signals from a sex partner are conclusive –
where it not for the rules on mens rea. As explained in the previous
subchapter however, where the accused did not disregard his victim’s words
or actions, and the situation involved no other vitiating circumstances he
will be guilty of neither rape nor attempted rape.

However, not only defendants have no direct insight into putative victims’
mindsets, courts have no such insight either. Opponents of this model argue
it fails due to the impossibility of gaining epistemological access to
someone else’s subjective mental state.265 Without such access, perhaps it is
impossible to come to a materially correct verdict using this model.

It is true we cannot gain direct access to another’s mindset since we cannot

read minds. Yet courts can make inferences regarding the victim’s mindset
through her testimony in combination with assessing her credibility, and the
surrounding circumstances (most importantly existence of vitiating
circumstances). Moreover, it is not the case that the victim’s actions and
expressions are wholly irrelevant under an attitudinal model. Her actions

263
Westen, Some common confusions about consent, Ohio state journal of criminal law
vol.2, p. 345
264
Westen, Some common confusions about consent, Ohio state journal of criminal law
vol.2, p. 345
265
McGregor, Is it rape? P. 122

52
can be used to infer either consent or nonconsent when seen in combination
with the surrounding circumstances. Expression will just not constitute
consent under this model, merely be a piece of the puzzle. In other words,
determining a subjective mental state is not an entirely subjective test.
Courts have to assess all these factors – testimony, credibility, surrounding
circumstances, actions by the parties, under expressive models as well
whenever defendant and complainant versions of events diverge, especially
in the absence of witnesses and physical evidence of for instance violence.
An expressed no or a terrified demeanour do not leave physical evidence,
here too the court will have listen to the two sides and make a credibility
evaluation along with assessing surrounding circumstances in order to
determine what was said and done.

Courts admittedly already make these inferences about mental state on a

regular basis, in fact whenever they assess mens rea. Defendant’s mental
states are equally inaccessible to courts yet this does not stop courts from
regularly relying on inference of mental state when determining cases that
require mens rea.

Courts may have difficulty determining when desire turns into choice under
an attitudinal model since both are mental states. This provides no problem
for the defence when the situation does not involve any vitiating
circumstances and the defendant has shown no contempt for the victim’s
autonomy, he will lack mens rea. It is however relevant to assess when
desire turns to choice when the defendant has shown disregard for the
victim’s autonomy or another vitiating factor is present and the question
arises whether to hold the defendant liable for rape or attempted rape. Yet it
is still not so much of a problem from the defendant’s perspective. He is not
disadvantaged relative to an expressive model, quite the contrary. Under
expressive models, he will always be liable for rape whenever he disregards
the applicant’s autonomy or when a vitiating factor is present because these
models are only interested in whether the defendant acted culpably and not
in the victim’s mental state. Under an attitudinal model there is the
possibility he will only be held liable for attempted rape and when the court
is in doubt it should chose the lesser form of liability (in dubio mitius).

Hence, even though the attitudinal model at first encounter may seem
disadvantageous from the defendant’s perspective, it is in fact the opposite.
The attitudinal model is as explained earlier, a finer instrument for
determining liability since it considers an extra factor when grading rape
crimes. This model does not only punish perpetrators according to their
blameworthiness but also looks at the harm incurred by their victims – was
primary harm inflicted as well as dignitary harm – to determine how great a
punishment the state is justified in handing out.

53
6 Conclusions
6.1 Previously drawn conclusions
Human rights obligations in the context of rape

On both the global UN level and the regional European level, the
international bodies have established that rape violates several human
rights 266 and there exists an obligation on states to protect against rape even
when committed by non-state actors. 267 Furthermore, the Committee on the
elimination of all forms of discrimination against women urges states to
define rape as sexual intercourse without consent 268 and the European court
of human rights demands that states penalize any nonconsensual act as well
as focus on the issue of consent in all investigations. 269

The concept of consent and the various meanings given the term

Consent creates a privilege in criminal law; it removes an obligation to

refrain from conduct that would be prohibited were it not for said
consent. 270 Yet this is only one way in which courts and legal commentators
use consent. Consent is used both to describe the empirical fact that a person
chooses sex regardless of the reasons for doing so and to describe the
boundary between legal sex and criminal rape. 271 The first usage is morally
impotent, the second normatively significant. Furthermore, consent can be
understood as an act one performs but it can also be understood as a mental
state one has. 272 Finally, consent is used to describe an actual choice
(whether morally significant or not, whether an attitude or an act) but also to
describe a legal fiction of actual choice. 273 To avoid confusion about
consent in discussions and more importantly in judgments it is essential to
be aware in which way consent is being used.

The very use of consent in rape legislation has been criticized. Feminists
have criticized its historical and modern application where many violent,

266
CEDAW General recommendation no. 19, p. 1, 7; Articles 3 and 8 of the ECHR; M.C.
v. Bulgaria, Application no. 39272/98, 2003, para. 187 of the judgment
267
CEDAW articles 2b,c,e,f, 5a and general recommendation no. 19, p. 9; M.C. v. Bulgaria,
Application no. 39272/98, 2003, para. 149 of the judgment
268
See e.g. CEDAW, A/55/38 part II (2000) 61 at paras. 151; CEDAW, A/57/38 part I
(2002) 13 at para. 98.
269
M.C. v. Bulgaria, Application no. 39272/98, 2003, paras. 166, 181 of the judgment
270
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, pp. 333-334
271
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, pp. 335-336
272
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, pp. 336-337
273
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, pp. 337-338

54
threatening and deceptive situations have been seen as consensual. 274
Consent is applied more generously in sexual situations, that is more
situations are considered consensual, than in other areas of law. 275 However,
this is not a shortcoming of consent as a concept but rather of its normative
aspect. As long as states have a narrow understanding of which kinds of
pressure should be prohibited when seeking sex, the protection of negative
sexual autonomy will be deficient under any legal construct.276 When norms
are changed in ways to better protect negative sexual autonomy, these can
be codified within the concept of consent.277

6.2 Conclusions drawn when comparing

models
6.2.1 Sexual autonomy
General conclusions about consent drawn from comparing the models

Even if we are talking about consent as delineator between sex and rape,
consent that works as a defense against rape liability is not a question of
whether a woman really wants sex when she chooses it under pressure of
circumstances. 278 She both does and does not want sex. She wants sex in the
sense that she prefers it to whatever she is threatened with, she does not
want sex because she would not choose it were it not for the pressure she
finds herself under. 279 Legal consent is instead a question of whether she
chooses sex with the freedom (competence and knowledge) her jurisdiction
entitles her to.280

Moreover, a victim’s thoughts about whether she has given valid consent
are irrelevant for determining the existence of legal consent. This is true for
all consent-based models and whether the situation involves vitiating
circumstances or not. Take a situation that involves no vitiating
circumstance; a woman says yes to sex with her boyfriend because he
threatens to end their relationship otherwise. She chooses sex in mind and
deed to avoid a breakup, but she does not believe her consent is valid due to
the threat. Yet, since no jurisdiction criminalizes this type of threat the
situation does involve legal consent; it involves choice (factual consent)

274
Pateman, Women and consent, Political theory 8(2); cit. Cahill Rethinking rape, p.172;
MacKinnon, Toward a feminist theory of the state; cit. McGregor, Is it rape?, pp. 79-80
275
McGregor, Is it rape?, p. 100
276
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 359
277
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 359
278
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 355
279
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 355
280
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 355

55
under conditions that are acceptable to the state. Take instead a situation that
involves a vitiating circumstance, a woman says yes to sex at gunpoint. The
victim has given factual consent under all of the models; she has chosen sex
in mind (attitudinal) and deed (expressive) and she therefore truly believes
she has given valid consent. Again the victim’s belief is irrelevant for the
existence of legal consent, because no jurisdiction upholds a choice made
under these conditions. All jurisdictions make it a crime to obtain sex by use
of threat of extreme harm.

Indispensable for all consent-based models and more important than

defining what consent is; attitudinal or performative, requiring no or yes, is
defining which circumstances invalidate experienced or expressed factual
consent. A threat can just as easily make a person say yes as refrain from
saying no. A lie will not only make a victim perform the necessary
expressions but will also make her consent in mind. It is therefore vital to
have a robust and comprehensive understanding of the types of behavior on
the part of potential perpetrators that invalidates consent (e.g. violence and
threats thereof, certain types of nonviolent threats and deception) and which
types of circumstances relating to the victim should be criminal to exploit
(for example underage, retardation, intoxication). This is crucial in order to
determine when the absence of no, the existence of yes or mental state of
choosing sex should not be sufficient to work as defense against rape
liability.

Important to note is also that it is not only the nature of vitiating factors that
determine rape liability but also the degree to which they are present. This is
true of all types of invalidating factors. Not all violence, deception,
exploitation etc reach the level of invalidating consent under national
jurisdictions, nor should it. Inflicting or threatening death or grave bodily
harm in order to achieve intercourse is criminal under all jurisdictions,
threatening a slap on the face or a pinch of the arm is not. Threatening grave
economic setback (such as burning down the victim’s house) is illegal in
some jurisdictions, 281 threatening to destroy an item of low value is not
illegal in any jurisdiction. Jurisdictions that see deception as a factor
invalidating consent often see impersonation of a husband as fraud as well
as sex under the pretence of medical examination. 282 No jurisdictions see
insincere professions of love or bolstered statements of personal traits and
abilities as illegal deception. Merely tasting alcohol does not invalidate
consent under any jurisdiction; high level of intoxication invalidates consent
under several jurisdictions. 283 It would in my opinion be a mistake to for
instance criminalize sex with someone as soon as they have had a drink, to
criminalize sex achieved by false professions of love or threat of a break-up.
Alcohol works as a social lubricant helping people to relax and does not

281
In Sweden threatening to commit a criminal act results in rape liability, this includes
crimes against property. Asp, Sex och samtycke, pp. 58-59
282
Christopher et al., Adult impersonation: rape by fraud as a defense to statutory rape,
Northwestern university law review vol. 101 no. 1, p. 87
283
See for instance the Swedish criminal code Brottsbalk 1962:700 1§ 2st

56
remove the ability of rational choice when taken in moderation. 284 Making
oneself appear more emotionally invested than one is may not be decent but
it hardly warrants prosecution for a most serious crime. Finally, people
should be free to leave relationships that do not meet their expectations.
There is simply no public support for making these kinds of behavior (or
rather exploitation, deception and threat to this lesser degree) criminal.

Contrary to popular belief all the different ways of understanding consent

entail some form of resistance requirement in the absence of vitiating
circumstances. 285 Applying consent as the absence of no entails the most
obvious resistance requirement. Yet applying affirmative consent also
entails a resistance requirement namely passivity. Also when applying
consent as a mental state a woman cannot actively engage in sex and
successfully claim to have been raped, in the absence of vitiating
circumstances of course. When a vitiating factor is present though any
resistance requirement is waived, for instance if a situation involves threat
of grievous bodily harm the victim may actively cooperate and still have
recourse to the courts.

Resistance is also the logical requirement when subjected to non-criminal

threats under all the different understandings of consent.286 If a man for
instance threatens to stop inviting a woman out for dinner if she does not
have sex with him, the woman is required to resist. If she chooses sex to
keep the dinners she will not have recourse to the law under any conception
of consent.

Which examined model provides the best protection of negative sexual

autonomy

When it comes to protecting negative sexual autonomy the Yes Model

clearly does the best job. Among other things, it requires those who seek sex
to await positive signals of consent (rebuttable presumption of nonconsent)
and contains a comprehensive list of vitiating factors. This model elaborates
not only on the nature of vitiating factors that result in rape liability –
underage, mental illness/retardation, intoxication, deception, coercion (not
only violence) – but also on the degree to which they should be present.

The Yes Model also suggests a more extensive understanding of coercive

threats based on what we may expect of other people, especially when they
hold positions of trust. Additionally, McGregor sees the difficulty of
dividing fraud into ‘in factum’ and ‘in inducement’ and provides an
alternative view for when deception should be seen as criminal. She
proposes using a combination of causal effect – the person consented
because of the lie – and considering what we may expect in sexual

284
McGregor, Is it rape?, p. 147
285
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 350
286
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 353

57
relationships or encounters. We may expect people to exaggerate their
virtues and emotional investment. No one should have to expect that their
boyfriend be substituted for someone else, to name one example of fraud.
This is not a perfect solution. The requirement of causal effect between the
lie and the consent is sound and should meet no opposition, but ‘what one
may expect’ in sexual situations is contestable. It may still be as useful as a
fraud in factum/fraud in inducement construct though. Fraud in factum is
very narrow and relates only to deception as to the nature of the act itself, all
other instances of fraud are “in inducement” meaning they are normative
and debatable. The division factum/inducement also does not reflect a
difference in harm and violation to the victim, an ‘inducement-victim’ may
well suffer the greatest injury but is in many jurisdictions without legal
protection.

The Yes Model sees violence as incompatible with sex. While this seems
sound it is problematic since it places sadomasochists in the same category
as violent rapists without the former having violated the interest rape
legislation seeks to protect; the right not to engage in sex. It is however
positive from the negative sexual autonomy perspective that the Yes Model
sees rape perpetrated by use or threat of violence as an aggravated offence.
This is reasonable because these rapes entail additional harm to the victim
but it may also increase chances of conviction for nonviolent rape since
violent rape is generally seen as more serious.

A final aspect which could make the Yes Model preferable from the
negative autonomy perspective is that it entails liability already at
negligence. Since unreasonable beliefs do not acquit it may give men
incentive to act with care in sexual situations instead of rewarding
remaining oblivious to women’s choices. In practice however, negligence
liability will likely have little effect since the difference between
recklessness and negligence is thin and the outcome probably more
dependant on the court or jury’s sensibilities and prejudices than on the
distinction between conscious and unconscious risk-taking. 287 A sexist court
will see more instances of objectionable behavior as reasonable leaving the
applicant no better of with this distinction in place. Liability for recklessness
also has the advantage over negligence in that the latter is necessarily a
normative question, dependant on this courts opinion of what is reasonable,
and the former is more akin to a question of fact – was this defendant aware
he was taking a risk. 288 Moreover, this defense is bound to be rare in
practice since most defendants will argue they had consent. When the
existence of consent is ambiguous the defendant has nothing to gain from
conceding there was no consent but he made a reasonable mistake about
this. The defense will only have reason to use this excuse when there is no
question the applicant did not consent and in these cases the court is
unlikely to believe the defendant did not even consider the possibility of
nonconsent.

287
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 324
288
Asp, Sex och samtycke, p. 193

58
The weakness of the Yes Model is the risk of consent being misread either
in the form of male misinterpretation – although this is mitigated by the
requirement of going ‘beyond symbolically appropriate behavior to ensure
consent’289 – or if consent to sexual foreplay and petting is seen as consent
to intercourse. Both of these examples should be mitigated by the fact that it
is not the defendant who determines the meaning of the victim’s expression,
and if the ‘reasonable observer-standard’ is applied the female perspective
of what is reasonable should hold equal weight to that of the male
perspective.

Another possible problem is that the model may go too far. Perhaps too
many situations result in rape liability relative to what people in general
think constitutes rape. If this results in nullification of the law it is of course
a problem for the protection of negative sexual autonomy. I will discuss this
further in my conclusions about the ‘rights of the accused’.

The consequences for negative sexual autonomy of seeing consent as either

attitude or act

The following pages will look at the consequences for negative sexual
autonomy when consent is understood as the absence of no, yes or mental
state; stripped of the specifics of the various models examined, for instance
their views of the circumstances that vitiate consent.

I believe Westen is rights when saying that defining consent as either

expression or mental state is not a question of one way being right and the
other wrong. Instead it is a question of the underlying rationale of the
punishment, is it merely to punish the blameworthy or is it to punish the
blameworthy in combination with considering the harm caused. 290 Having
said this, one yields partially different effects on the protection of negative
sexual autonomy when one applies these different views of consent.

Applying consent as an expression has the virtue of giving force to women’s

words and actions as well as holding those who show disregard for someone
else’s subjectivity liable. Applying consent as the absence of no silences
arguments along the line of ‘she said no but meant yes’ which seems
reasonable. As I discussed under the No Model subchapter, studies show
that women rarely give token consent and even when they do most of the
cases involve women who merely desired sex but did not choose it. Even
without these findings men who have sex with women who say no are
reckless in the absence of extremely convincing contrary evidence. They are
taking a conscious risk of causing great harm since they must at the very
least be aware this woman might mean what she is saying.

Viewing consent as an expression of yes has the benefit of protecting more

women as the passive victim is covered as well. It is unclear how important

289
McGregor, Is it rape?, p. 135
290
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 342

59
extending protection to passive victims is when taking into account
peritraumatic stress. The studies made show that victims are far more likely
to experience this type of trauma when subjected to violence, attacked by a
stranger, when sustaining injury or fearing for their lives. 291 In these
situations victims are not required to resist verbally or physically. On the
other hand victims may remain passive out of fear without their passivity
being a peritraumatic response but instead a strategy to escape additional
injury. Case law shows an unwillingness to see the connection between
power and force, the fact that in some situations men do not need to use
physical violence or express threats; superior strength, imbalance of power,
and creating or exploiting a victim’s vulnerable position will do. 292 Fear-
induced passivity may also arise without the situation objectively entailing
threat of violence; jurisdictions often do not take into account a particular
victim’s exaggerated fear when assessing threat of harm. 293 For these
reasons equating passivity with consent does not provide sufficient
protection of negative sexual autonomy. Holding passivity instead to equal
nonconsent may also be relevant in protecting intoxicated victims, reducing
the need for difficult inquiries into how drunk a victim need be for her
consent to be invalid; if she was passive there was no consent. Since
intoxication can also lead to the victim signaling affirmative consent it will
not entirely remove the need for these inquiries though. Furthermore, it
seems reasonable that a law aiming to protect negative sexual autonomy
sees passivity as signaling nonconsent, that it is unacceptable to engage in
sexual acts with someone who gives no indications such acts are welcome.

There may be problems with misreading signals when applying affirmative

consent, especially when behavior can signal consent, studies show men
often interpret women as consenting when they are not. However applying
affirmative consent is still preferable to applying consent as the absence of
no as the latter sees any behavior as indicating consent until the victim
expresses verbal rejection.

Then again it may be harder to achieve convictions when applying

affirmative consent. Or put differently, the extended protection offered by
such statutes risks being nullified in practice. To have sex with someone
despite verbal resistance is more in tune with how people perceive rape than
not awaiting positive signals. 294 Verbal resistance also better establishes
mens rea, a court or jury will likely find it easier to confirm the man was
aware he was having nonconsensual sex if his victim told him so. Even if
the statute does not demand it, juries want some evidence that corroborates
nonconsent 295 and there is a risk that a verbal resistance requirement will

291
Finn, Paralysis common among sexual assault victims, Family practice news, March 1,
2003, p. 44
292
Gonzales v. State, Goldberg v. State, People v. Evans – in all of these cases the victims
found themselves alone with the defendant in a secluded area, in a vulnerable position
created by the defendant but without explicit threat. Estrich, Real rape, pp. 66-69
293
Two cases in which the court states that the fear must be reasonable are State v. Rusk
and Gonzales v. State. Estrich, Real rape, pp. 63-67
294
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 348
295
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 352

60
persist in practice. Furthermore, some studies indicate that while consent is
most often nonverbal, nonconsent is often expressed in a more direct, verbal
manner. 296 Some commentators even argue the majority of acquaintance
rape victims physically resist their attacker. 297 This would mean that for
most victims the added protection of requiring positive signals would be
superfluous. However, for a significant number it may still be relevant
requiring positive signals. 298 To sum up very shortly, applying affirmative
consent is preferable to applying consent as the absence of no, provided the
law is conformed with.

When applying consent as a mental state the consenter seems privileged

because she cannot consent by mistake and what determines the existence of
consent is not how it was perceived by the defendant or even a reasonable
observer, but what she experienced. Consent under an attitudinal view is not
a purely subjective test though. When an applicant lacks competence – she
is underage, mentally retarded, intoxicated – the court will have objective
evidence of this. And when she does not lack competence it is not her
testimony alone but in combination with credibility assessment, the
surrounding circumstances of the case and possibly her actions that
determines the existence of consent. An example of a situation in which
surrounding circumstances can effect the determination of subjective legal
consent is the Bink case. Here the prosecution had evidence the inmate
consented to ensnare Bink – a legally acceptable reason to consent – and not
because of Bink’s violence. The surrounding evidence thus helped
determine that the inmate gave legal attitudinal consent and Bink was
therefore only liable for attempted rape.

I argued above that applying consent as an expression has the virtue of

holding those who show disregard for someone else’s subjectivity legally
responsible. Yet states can achieve this when applying consent as a mental
state as well through the prohibition of attempted rape. Though with a
mental state view there is a risk of defendants routinely arguing that despite
their use or threat of violence or that they went ahead in the face of their
victim’s expressions of nonconsent, the women consented in their minds.
They consented due to desire or because they wanted to get the defendants
prosecuted for rape and for that reason the defendants should only be held
liable for attempted rape. However applicants are probably not worse off
since when applying consent as an expression the same defendant could

296
Rosenthal and Peart, The rules of the game: Teenagers communicating about sex,
Journal of adolescence, p. 325 and; McCormick and Jones, Gender differences in
nonverbal flirtation, Journal of sex education and therapy, pp. 271-282; cit. Cowling,
Should communicative sexuality be written into English law on rape?, pp. 57-59,
Contemporary issues in law Vol. 6 Issue 1
297
Rozee et al., The Personal Perspective of Acquaintance Rape Prevention: A Three-Tier
Approach, in Acquaintance Rape: The Hidden Crime 216, 337, 349 and Warshaw, I Never
Called it Rape; cit Bryden, Redefining rape, notes, 195-196. Warshaw even cites the
number 70 percent.
298
If Warshaw is correct that still leaves 30 percent who do not resist, whether these
victims are protected anyway because they were subjected to violence or another vitiating
factor is unclear.

61
instead argue the applicant consented but afterwards changed her mind and
is now making a false accusation of rape or, if the defendant used violence
that it was just part of a consensual sadomasochistic practice they shared.

There may be a risk of prosecutors habitually only indicting defendants for

attempted rape though because they think it too difficult to establish
subjective factual nonconsent and to difficult to determine when desire turns
into choice. Though I do not believe this poses a great risk. In the absence of
indications or evidence that the victim consented for another legally
acceptable reason 299 and with the victim’s testimony along with the other
circumstances of the case (the victim’s expressions, vitiating factors) the
prosecution should be confident to prove subjective nonconsent.
Furthermore the distinction between desire and consent will not be relevant
for cases involving fraud or incompetence. Of those who are underage,
mentally retarded, intoxicated there is no reason to ask if they consented for
another legally valid reason, they are excluded from giving valid consent for
any reason.

I have just dismissed my apprehensions that defendants will find it too easy
to argue consent in the face of expressions of nonconsent or vitiating
circumstances and prosecutors will lack confidence to prove subjective
nonconsent, when applying consent as an attitude. If I am right to do so a
mental state-view of consent provides better protection of negative sexual
autonomy than applying consent as the absence of a no and protection
almost equal to that of applying affirmative expressive consent. The liability
and sentencing will be lower in some cases (when the applicant validly
consents in mind) under an attitudinal view, but like with affirmative
consent more victims (passive victims) will have recourse to the courts.

6.2.2 Rights of the accused

It seems as if conceiving of consent as an expression would be better from
the defendant’s perspective since here he can trust a woman’s words or
behavior, if she said yes or behaviorally signaled yes she cannot claim to
have been raped later on (in the absence of vitiating circumstances of
course). Under an attitudinal view the applicant’s mental state is decisive for
determining the actus reus which may not correspond with her actions and
the defendant has no insight into her mental state. However, the rules on
mens rea cure this problem making it safe to trust women’s expressions
under an attitudinal view as well. Men will not be held liable for having sex
with women who signaled consent in the absence of vitiating factors.

Courts have no direct access to the applicant’s mental state either. However,
courts frequently make inferences about mental states they have no direct
insight into whenever they determine whether a defendant has the requisite
mens rea. When courts determine the applicant’s mental state they are aided
by the same tools as when determining mens rea: the person’s actions,

299
Such as the inmate’s cooperation with prison authorities to ensnare Bink.

62
testimony, credibility assessment and the surrounding circumstances of the
case. Courts may have difficulty determining when desire turns to choice
when both are mental states but that does not mean that men are
disadvantaged under this view. When there is doubt about whether to hold
the defendant liable for rape or attempted rape courts should chose the lesser
form of liability (in dubio mitius). Even if a court were to depart from this
principle the defendant would not be disadvantaged relative to an expressive
view. Under expressive models the defendant is invariably guilty of rape
when he shows contempt for the applicant’s subjectivity or another vitiating
factor is present.

Appearances aside, the attitudinal view entails the most favorable

consequences for the legal rights of the accused since it constitutes a finer-
tuned instrument for grading liability. When jurisdictions perceive consent
as an expression they focus only on the blameworthiness of defendants;
when defendants disregard their victim’s subjectivity they are guilty of rape.
Perceiving of consent as an attitude means considering this aspect as well
but also having a more complex understanding of the harm victims may
incur. Where expressive models look only for dignitary harm – that which
defendants cause when they subject others to intercourse they (ought to)
infer the other person does not choose – attitudinal models look for primary
harm as well. 300 Primary harm is achieved when the victim does not get to
subjectively choose intercourse under conditions the jurisdiction considers
her entitled to. 301 Between two men who both do what they can to achieve
nonconsensual sex but only one achieves his aim, both are equally
blameworthy but it is questionable whether the state is justified in handing
out as severe punishment where less harm was incurred. Understanding
consent as an attitude acknowledges this and considers it unjust to hand out
equal punishment for different types of harm.

If we look at the three different models per se – vitiating factors included –

the attitudinal model is still the most favorable from the perspective of the
legal rights of the accused. The attitudinal model has the least far-reaching
understanding of what vitiates consent; since it is not a model per se it does
not list any vitiating factors (simply categories that could be relevant:
freedom, competence and knowledge). As I see it the only way the
attitudinal model would be less favorable than the other models from the
‘legal rights’-perspective is if it had a more extensive and questionable
understanding of factors that vitiate consent. For instance, if trivial threats
(have sex with me or I will be annoyed) or trivial deception (falsely
claiming to be a natural blonde) were seen to vitiate consent.

A factor that influences the legal rights of the accused is how well the
various models (or the various conceptions of consent for that matter)
provide a bright line between criminal and non-criminal behavior for

300
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 344
301
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 346

63
putative offenders to relate to. The bright line is also relevant for courts as
when it is crossed it provides a corroborative of actus reus and the
defendant’s mens rea. The No Model provides a brighter line than the Yes
Model because under the No Model it is up to the putative victim to make
clear that sex is unwelcome, men are made aware they are crossing the line.
The No Model is not entirely straightforward though, even disregarding the
issue of no not always meaning no 302, as there is the issue of how long a
‘no’ reigns over the situation. It seems unreasonable for a previous ‘no’ to
control the situation even when the victim subsequently behaves in a way
that indicates she has changed her mind (absent a threat or similar
circumstance). A ‘no’ becomes progressively weaker the more time passes
and should be interpreted in the light of what was said and done since. 303
Under the No Model repeated requests or attempts to have intercourse are
seen as inherently coercive but even Estrich must concede that a no
eventually looses its command over the situation. How much time must pass
before this happens remains unclear though and problematic for the No
Model as well as for other models that focus on verbal rejection.

The Yes Model and affirmative consent in general avoids this problem; a
woman may change her mind and consent but must then signal this
affirmatively whereas under the No Model a woman’s change of mind may
be legally ineffective after an uttered ‘no’. 304 The Yes Model has its own
problems though as it involves reading affirmative signals correctly,
something studies indicate men are bad at. The misinterpretation only goes
in one direction – believing a woman signaled consent when she did not and
thus possibly incurring rape liability. The fact that a reasonable observer
determines the meaning of the expression 305 may go in both directions. A
male observer may come to the conclusion consent was given meaning the
defendant is not liable, a female observer may come to the opposite
conclusion. Then again misreading signals may not be as problematic as it
seems. When a woman realizes the man has misread her signals she will
either engage in some form of resistance or remain passive, either behavior
means there is no consent under the Yes Model (the man has the requisite
mens rea if he has sex with someone who is passive). Here passivity
provides a bright line (and corroboration for the court) and passivity should
be sufficiently easy for men to spot and they are already required to know
the meaning of verbal resistance under the No Model, meaning the Yes
Model entails no extra requirement in this respect. One prominent

302
No does always mean no in the sense that it should be criminal to disregard, because
such behavior shows contempt for the other person’s subjectivity (labeled rape under the
expressive models and attempted rape under the attitudinal model). However, no does not
always mean that the victim did not subjectively choose intercourse under conditions
acceptable to the jurisdiction (i.e. it is not necessarily rape under the attitudinal model).
303
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 341
304
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 345
305
McGregor thinks that the consenter’s intention should decide the meaning of the
expression but as I have previously explained that would make this an attitudinal model.
When what the applicant intended to express clashes with how the expression was
perceived an attitudinal model holds the former to be decisive, an expressive model the
latter.

64
commentator even questions the importance of considering male
misinterpretation. He argues that most mistakes about consent are legally
irrelevant, such as believing that the woman will change her mind and
consent during the intercourse or that the victim will not report the rape to
the police. 306

The attitudinal model provides no bright line function by itself since here
what determines the existence of factual consent is not an expression or a
lack thereof but a mental state. However, in combination with rules
prohibiting attempted rape the attitudinal model achieves this function
indirectly. Westen indicates the line should be drawn at having sex with
someone who does not give positive signals, the defendant causes dignitary
harm when he subjects his victim to “sexual intercourse in the absence of
expressions that reasonably lead him to believe that he is acting in accord
with her desires. 307”[Emphasis added] Yet it seems that it is up to states to
decide where they draw the line for criminal attempts – at verbal resistance
or already at the absence of affirmative signals – the conception of consent
as attitudinal seems to enable either preference.

Finally, a bright line function is provided by the various models

understanding of the factors that vitiate consent, what types of threats or
deception for instance. These types of lines are a lot harder for men to keep
track of than either respecting a no or refraining from having sex with
someone who is passive meaning that a model with an extensive
understanding of vitiating factors would entail more insecurity of what
amounts to rape. Ignorance of the law is as invalid of an excuse here as in
other areas of the law though.

However there are legal commentators who argue it is unjust to punish those
who are ignorant of the law. 308 The justice system speak of statutes as
providing sufficient warning to potential offenders but most people do not
know the specifics of various laws not even of a highly debated one as the
law on rape. 309 People usually learn what is right and wrong from the
society they live in. I do not believe this fact justifies an ignorance of the
law defense. If states could only enforce laws that people living in their
territory had full comprehension of it would make a thin list and people
would generally be a lot worse off, many laws exists to protect them against
various abuses from others. It does however raise the question of how great
a gap between the law and the public’s perception on a particular issue is
acceptable when introducing new legislation, especially in the realm of
social interaction and conventions. For this reason, some legal
commentators argue it is unjust to send a man to jail for not awaiting
positive signals of consent, 310 as the Yes Model and the attitudinal model

306
Bryden, Redefining rape, Buffalo criminal law review vol. 3, pp.33-34
307
Westen, Some common confusions about consent in rape cases, Ohio state journal of
criminal law vol.2, p. 345
308
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 347
309
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 347
310
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 347

65
proposes to do. They argue that although the proper thing to do is to await
positive signals, to refrain from doing so is not uncommon or immoral to
justify imprisonment. 311

If the gap between the law and the general public’s perception of what
amounts to rape is too great it may not only be unfair to those who are
ignorant of the law, it may also lead to the law not being enforced. 312 This
does provide a problem for the Yes Model and possibly the attitudinal
model; a problem the No Model largely avoids as there is greater consensus
among people in general that proceeding beyond a ‘no’ is unacceptable
enough to warrant sanction. On the other hand, it seems unfair to make
women alone bear the consequences for men’s ignorance; this problem
could be alleviated by information campaigns instead of refraining from
adopting otherwise just laws. Because it does seem reasonable to abstain
from penetrating another person without indications that it is welcome. It
also seems logical that legislation that aims to protect negative sexual
autonomy presumes nonconsent. As for the fear that the law will not be
enforced this can be solved by other means such as more education of and
accountability for those employed in various areas of the judicial system. I
also imagine this problem will decrease the more women (and men with
more modern attitudes towards equality) work in the various stages of the
judicial system.

If the gap between the law and the public’s perception of what amounts to
rape is a greater problem then I have supposed here, I maintain that the
attitudinal model (or understanding consent as an attitude) is the best model
from the ‘legal rights’-perspective. Under the attitudinal model it is as I see
it possible to place the line between criminal and non-criminal behavior at
‘sexual intercourse with someone who expresses nonconsent’ instead of at
‘sexual intercourse with someone in the absence of positive signals’. For the
Yes Model there is obviously no such possibility which is one of the reasons
why this model is the less favorable from perspective of the legal rights of
the accused but there are other reasons as well.

The Yes Model has the most expansive notion of the factors that vitiate
consent. Especially when it comes to fraud and even more so coercion, the
Yes Model goes further than current legislation in various states and further
than many other legal commentators suggest. Under this model coercion is
expanded beyond violent threats to exploiting a position of trust, exploiting
someone in a harmful situation (for instant conditioning the rescue of a
person in acute distress on sexual favors) and to certain nonviolent threats.
The Yes Model also provides a different explanation of what turns
deception and nonviolent threats into criminal behavior than the standard
accounts. This understanding has to do with what people may expect instead
of division into fraud in factum/fraud in inducement and threats being that
which places people at a disadvantage relative to their baseline. These ideas
may go too far relative to the general public’s perception of what amounts to
311
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 348
312
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 348

66
rape and basing what counts as deception and coercion in large part on what
one may expect may be considered too imprecise and hard to identify a
common understanding of. The Yes Model is further problematic because in
removing consent as an excuse when violence was used it risks punishing
sadomasochists for rape even though they do not even attempt to override
someone else’s negative sexual autonomy which is the essence of the crime
of rape.

A final aspect which makes the Yes Model as well as the No Model less
favorable from the defendant’s perspective is liability for rape already at
negligence. In fairness to the No Model it may be more negligent – reckless
even – to proceed in the face of verbal rejection than in the absence of
positive signals. In either case, the standard reasoning for not holding the
negligent liable – that it is unjust punishing those who can do no better and
ineffective as deterrence – is flawed as a blameworthy decision to forego
precautions has usually preceded the harm. 313 There might still be those who
deem it to harsh to demand liability for a crime as stigmatizing as rape when
the defendant acted without intention. Be that as it may, negligence liability
is likely to have little effect in practice. The line between recklessness and
negligence is thin in practice and the outcome probably more dependant on
the court or jury’s sensibilities and prejudices than on the legal distinction.
For most defendants it will be irrelevant as they will argue they had consent,
not that they had a reasonable mistaken belief about consent. In those cases
where it would be a relevant defense – where it would be obvious the
applicant did not consent – the defendant would most likely be held to be
reckless anyway. It seems unlikely the court would believe the defendant
did not even consider there was no consent when it is so obvious to them the
situation lacked consent.

I will end with a few words about violence as an aggravating factor. It

seems reasonable to place the nonviolent rapist in a different category than
that of the most violent rapists. The former has caused his victims great
harm but he has not exacerbated this harm by additional violence; assault
and threat thereof being offences in their own right. All the models enable
this division. 314

313
Bryden, Redefining rape, Buffalo criminal law review vol. 3, p. 323
314
Westen explains there is no contradiction in defining the more severe felony as sexual
intercourse by force and without legal consent and the less severe felony as sexual
intercourse without legal consent. Westen, Some common confusions about consent in rape
cases, Ohio state journal of criminal law vol. 2, note 25

67
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Table of Cases
Boro v. Superior Court, 163 Cat. App. 3d 1224, 210 Cal Rptr. 122 (1985)
California v. Burnham, 176 Cal. App. 3d 1134, 222 Cal. Rptr. 630 (1985)
Goldberg v. State, 41 Maryland App. 58, 395 A.2d 1213 (1979)
Gonzales v. State, 516 P.2d. 592 Wyoming (1973)
McNair v. State, 108 Nevada 53; 825 P.2d 571; 1992 Nevada LEXIS 21
M.C v. Bulgaria, Application no. 39272/98 (2003)
New York v. Bink, 84 App. Div. 2d 607, 44 N.Y.S.2d 237 (1981)
People v. Evans, 85 Misc.2d 1088, 379 N.Y.S 2d 912 (1975)
People v. Hough, 159 Misc. 2d 997; 607 New York State 2d 884; 1994 New
York Misc. LEXIS 10
State v. Rusk, 43 Md. App. 476, 406 A.2d 624 (1979), reversed 289 Md.
230, 424 A2d. 720 (1981)

70