Peter M. Tiersma
Perhaps the most important feature of the word consent is that it describes a state of mind. It is not primarily a performative verb. Of course, it is possible to consent by saying “I consent.” So it might be more accurate to say that consent can be used in either a descriptive or performative sense. For our purposes, the critical point is that a person can consent without saying so, as reflected in the adage “silence is consent.”
Compare consenting to promising. Promising is not a mental state. If I commit myself mentally to doing something for you, I have not promised, except perhaps in the derivative sense of promising myself to do something. Generally, for me to promise something, I have to communicate my commitment to the recipient of the promise. I do not, of course, have to use the word promise. But I do have to use words of some sort, or use actions that can communicate prepositional content. To consent, on the other hand, it usually suffices to have the right state of mind. Consent is like believe or think. I can say that I believe or think something, but I can also just believe or think it, without communicating my belief or thought to anyone.
Of course, there are many situations in which consent is expressed in words or actions. In fact, it may be legally required for consent to be expressed, sometimes orally, and sometimes also in writing. By way of illustration, the words “written consent” occur over 850 times in the statutes of California.1 Rape law, in contrast, does not require written consent, or even express consent (that is, consent in words). It merely requires a certain state of mind.
It is instructive to compare the verb consent with agree. Consenting usually involves submitting to someone else’s initiative or plan. It suggests that one person is proposing a course of action and that the other is going along with it, or at least allowing it to happen. Although it need not invariably be the case, the person who consents often takes a relatively passive role. As Anna Wierzbicka (1987: 112) has pointed out, “consent implies a position of dependence on the part of the addressee.” In contrast, she observes that agreeing generally involves a more symmetrical or reciprocal relationship. At the same time, she notes that consent does not just involve allowing an act to take place: “consent implies a more active kind of support than permission” (1987: 113). The latter distinction is important, because some courts seem to believe that it is enough for a woman to permit a man to carry out his sexual plans. Indeed, in many ways the resistance requirement is more consistent with permission, which is not the legal standard, than it is with consent.
In any event, the notion of consent remains problematic because, even if it is viewed as requiring support for the man’s plan, the act of consenting is a mental state that may or may not be expressed verbally. Perhaps some of the difficulties with consent in rape law could be solved by requiring that consent must be made explicitly in words (see Remick, 1993). I t can be very challenging to determine a person’s mental state by means of inferences from his or her conduct.
Yet there are some serious drawbacks to this proposal. One is that the language that people use to discuss sexual matters is typically vague and indirect. Although our society is no doubt changing in this regard, many people in Western society still consider it taboo to talk explicitly about sexual acts, even when they are engaging in them. In English we have a huge number of euphemisms for sexual acts. Moreover, some people seem to consider direct talk about sexual relations unromantic, especially in a dating situation.
Thus, many people in our society typically discuss sex—if they do so at all—by means of euphemism, double entendre, innuendo, or subtle suggestion. At least at the current stage of human development, it seems unlikely that the legal system could require men to obtain verbal consent, with the penalty for not doing so being a prosecution for rape.2 There is, in addition, the consideration that if a man can force or intimidate a woman into having sex with him, he can certainly force or intimidate her into saying “I consent.” In that case, the issue at trial would be whether she really consented, or whether she just said she consented because of pressure from the defendant. We would essentially be back where we started: debating whether the woman had a state of mind described by the word “consent.”
We might also place the burden on women to verbally object if they do not consent. Under this approach, a woman could stop any unwanted sexual advances by saying “no” or “stop.” If the man continues, he would be guilty of some kind of sexual crime, depending on what he did exactly. If he stops, he would be safe from prosecution. Like requiring express consent, this proposal would simplify matters by creating a bright-line rule. In that sense, it is similar to the former “physical resistance” rule. But it is unrealistic for the same reason that requiring verbal consent is unrealistic: it is not consistent with behaviour in our society; people do not always speak so clearly. It also places an unfair burden on women, who may be too intimidated by a man to verbally object.
If verbal standards are ultimately unworkable, we are left with a situation in which people often communicate consent indirectly, or where they signal their intentions by their actions, and perhaps even their silence. This may require that the man, and subsequently the jury, infer the woman’s mental state from what she says or does. We have already mentioned some of the problems of using inferences to determine consent or lack thereof. There is also a substantial literature containing linguistic or sociolinguistic analyses of rape trials that highlight the problems associated with inferential reasoning in this situation. Susan Ehrlich, for instance, reports on alleged cases of date rape, involving the same man but two different women, that took place on or near a college campus in Canada. She points out that defence attorneys and, in this case, members of a university disciplinary tribunal, often interrogated the women about what they did not do or say. Why did one of the women not cry out or yell, for instance, when there were people around who could have helped her? Why didn’t she explicitly tell the man that she did not want to have sex with him, rather than saying merely that she had a class in the morning and he had better leave? (Ehrlich 2001: 79, 86–7). Ehrlich concludes that the utmost resistance requirement is still discursively present, even if no longer explicitly required by law (2001: 92).
Yet it seems that as long as consent remains an element of rape law, we will have to use logical inferences to decide the woman’s state of mind. The fact that a woman does not scream or yell or try to leave is at least somewhat relevant in this endeavour; these facts support an inference that she consented. In a situation where there is little coercion, where the man is not intimidating, the door is unlocked, he has no weapons and makes no threats, and there are other people nearby, it seems natural to draw a fairly strong inference of consent if a woman does not scream, yell, say “stop,” or try to leave. As the environment becomes more coercive, that inference becomes correspondingly weaker or disappears entirely. If a man is holding a gun to a woman’s head, it seems ludicrous to infer consent from her failure to cry out.
That we use inferences to determine consent is unavoidable. What is often objectionable is that in the context of rape law, these inferences may rest on questionable or offensive (some would say patriarchal) assumptions. These include the fact that a woman was hitchhiking, wore sexy clothing, invited the man to her room, was sexually experienced, and so forth (Estrich 1987: 121–48). A particularly egregious example is a recent case in which a Texas judge determined that a woman’s request that a man use a condom was evidence of consent, despite the fact that he had threatened her with violence (see Da Luz and Weckerly 1993).
One solution to the problem is to limit the jury’s access to facts from which questionable inferences could be drawn. Rape shield laws are an example: they typically exclude certain facts from evidence. This is a rather paternalistic response, of course, because it suggests that the jury cannot be trusted with the information. And the suspicion that relevant evidence is being withheld from them may make the jury speculate about what they are missing. Nonetheless, it is not the only type of information that is withheld from jurors, and in the case of rape shield laws it seems like the right thing to do.
A somewhat different approach is to admit the facts into evidence, but to warn the jury to be cautious in drawing an inference from them. Following the notorious “condom” case in Texas, the California legislature enacted a statute that provided as follows: “evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.”3 Nonetheless, although such rules of evidence are helpful, they cannot solve the many uncertainties surrounding consent. There are just too many inferences that can be drawn from too many differing factual situations.
A final observation that I would like to make about consent is that it can be either voluntary or involuntary. At first, the notion of involuntary consent might seem to be an oxymoron. Isn’t consent voluntary by definition? Most of us have the notion that consent at least ought to be a matter of free will, uninfluenced by force, intimidation, or other pressure. That is certainly the ideal. But sometimes we can, by the exercise of our free will, consent to have something happen that we would rather not have happen. We do so because preventing the undesirable act would have even worse consequences than allowing it. In that case, we might say that although we consented, it was not really voluntary. And if the event or state of affairs that induced us to consent was coercive or illegal, we could later argue that our consent should not be considered valid.
Lest this discussion seem a bit esoteric, let me give an actual legal example: consent to search. In the United States, police may search a person or a person’s car or house only under specified circumstances. Otherwise the search would be illegal. If the police have no legal basis for a search, they can request consent to search. If the person consents, what would otherwise be illegal is now acceptable, and any evidence found during the search is admissible.
The obvious danger with consensual searches is that people may consent because they believe they have no real choice in the matter, especially if a uniformed police officer requests their permission alongside a busy highway in the middle of the night. The United States Supreme Court has addressed this concern by holding the government must show that the consent was voluntary. Elsewhere, Lawrence Solan and I have discussed some of the linguistic problems raised by consensual searches and the voluntariness requirement (Tiersma and Solan 2004). My point here is merely that the legal system recognises that consent can be either voluntary or involuntary.
Of course, whether someone consents involuntarily, or does not consent at all, can be a subtle distinction. It might even seem to be a trivial distinction. Normally, it does not matter whether a driver refuses to consent to a search, for instance, or consents involuntarily. In either case, the subsequent search is invalid.
But sometimes the distinction between nonconsent and involuntary consent matters. An illustration is the distinction between robbery and extortion. The prototypical robbery occurs when the perpetrator stops someone on the street and threatens that person with violence unless the person gives the perpetrator money or some other item of value. Extortion, on the other hand, usually takes place in private and involves the perpetrator threatening to expose a secret about someone unless that person gives the perpetrator money or some other item of value. These crimes closely resemble each other, but there is an interesting difference with respect to consent. The California Penal Code defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”4 California law defines “against a person’s will” as “without consent.”5 Extortion, on the other hand, is defined as “the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.”6 Thus, robbery involves obtaining property from someone without consent, whereas extortion involves obtaining property with consent.
Rape and other sexual crimes are almost universally defined as being “against the will” of the woman or “without her consent.” Thus, while the law in other areas distinguishes between acts done without the consent of the victim, and acts done with the involuntary consent of the victim, the law of rape has traditionally not drawn this distinction.
To summarise our discussion so far, consent (at least in rape law) is essentially a mental state, not a speech act. Because what goes on in a person’s mind is not directly observable, a person’s mental state must be determined by inferences based on the person’s speech and conduct. The inferences that people draw are dependent on their beliefs about how people act or should act in specific situations. In the context of rape law, such inferences may be based on incorrect information or might be objectionable for other reasons. As a consequence, the law’s dependence on consent, which persists even after widespread reform, is problematic. Finally, I have argued that consent can be either voluntary or involuntary.
Despite all these difficulties, we cannot eliminate consent completely, it seems to me, because consent is ultimately what distinguishes a very ordinary human activity from a serious crime. I will therefore suggest that the legal system should acknowledge that consent is critical, rather than try to avoid it, but at the same time redefine the crime of rape so that consent plays a very different role.
Part of the traditional definition of rape is that the woman did not consent to the intercourse. In cases of sexual violence, especially by a stranger, it seems to me that this is the correct assessment. To the extent that a man physically forces himself on a woman, it is perverse to say that she consented. This is true even when she does not actively resist. In the face of imminent violence, there is no time to think and reach a mental state that we would rationally label “consent.”
In the typical date rape scenario, however, the threat—although it may be just as real—may be less immediate. Consequently, it seems to me that a woman who submits to a man in this situation is often consenting—not because she wants to, but because it seems like the best choice under the circumstances. She has weighed her options, and the threat of violence if she refuses, or the possibility that her boss might retaliate against her, or whatever other coercive circumstance exists, leads her to decide that she should consent rather than resist. Yet as in the case of extortion, her consent is involuntary.
The result is that in cases where a woman involuntarily submitted or involuntarily consented to intercourse, her consent is no longer an issue. The prosecution does not need to prove that the woman did not consent; it can concede that the woman consented. Any evidence that relates to the woman’s consent or nonconsent should be irrelevant. The only thing that matters would be the amount of force, threat of force, or other coercive device that the defendant used and whether this rendered her consent involuntary. Because the fact of consent could be taken for granted, this approach would help focus the inquiry on the perpetrator’s conduct, which is where it properly belongs.
However, there is an additional problem with rape law as presently constituted: all of the emphasis is on the woman’s mental state, not the man’s. It seems to me that consent, and particularly the voluntariness of consent, are very relevant to rape law. The critical question, however, is not whether the woman failed to consent, but rather whether the man knew or should have known that this was the case. Virtually all crimes require not only that the defendant have done some act (the actus reus), but also that he have had a particular intent or state of mind while performing the act (the mens rea). As Susan Estrich has pointed out, rape may be unique in not requiring that the perpetrator have a particular intent.7
I would therefore redefine the crime of rape as follows. First, as with current law, there must be a specified sexual act. In addition, I would require that either: