This Article explores the relationship between consent and culpability. The goal is to present a thorough exposition of the tradeoffs at play when the law adopts different conceptions of consent. After describing the relationship between culpability, wrongdoing, permissibility, and consent, I argue that the best conception of consent—one that reflects what consent really is—is the conception of willed acquiescence. I then contend that to the extent that affirmative consent standards are aimed at protecting defendants, this can be better achieved through mens rea provisions. I then turn to the current victim-protecting impetus for affirmative expression standards, specifically, requirements that the victim by words or conduct said “yes” or “no.” I argue that the transition to this rule yields that a defendant who reasonably believed the victim acquiesced will still be guilty of sexual assault—all the defendant will be permitted to argue about is whether the victim’s behavior constituted the required expression. This could lead to strict liability, as it allows for the possibility of condemning someone who did not do anything morally culpable. I then examine questions about placing affirmative expression requirements into a criminal code. I argue that “no means no” standards are under-inclusive and that “only yes means yes” standards, so long as they allow conduct to count as affirmative consent, will fail to protect victims or give guidance to potential defendants. Conduct is simply too ambiguous. I then raise problems with grading and distinguishing offenses. Finally, I address the applicability of affirmative consent standards to colleges and universities. Although these institutions' reforms may be able to avoid some of the problems of criminal law, I maintain that colleges must solve the “intoxicated yes” problem, a problem that will exist even under affirmative consent requirements.
Criminal law & philosophy, affirmative consent, expression, behavior, coercion, culpability, higher education, Title IX
Ferzan, Kimberly Kessler, "Consent, Culpability, and the Law of Rape" (2016). Faculty Scholarship at Penn Law. 2329.
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