Reflections on Peter Tiersma’s “The Language and Consent in Rape Law”

The case under consideration here represents the most common type of sexual assault charge that goes to trial—date or acquaintance cases—so Tiersma’s analysis does not apply to the less-frequent stranger rapes, only to the prototypical “he-said-she-said” case where the issue of consent becomes relevant. Who wins the “war of words”? Tiersma demonstrates the inherently problematic nature of consent (he is only dealing with heterosexual cases where the male is the defendant and the female is the complainant) along numerous dimensions. I will address only several here. First, how do we determine the woman’s mental state, the locus of consent? Second, how do various patriarchal assumptions inform determination of consent? Finally, how does aggressive cross-examination by the defense attorney revictimize the complainant and “cloud” interpretation of consent? While these may appear as distinct questions, they interrelate along several lines.