The American Law Institute (ALI) created Model Penal Code (MPC) back in 1962. It’s goal was to standardize penal code throughout the US. Many states have adopted parts of its language including their definition for “consent.”  You can see whether their definition was applied when you read your state’s statutes. Each state “picks” and “chooses” the portions of MPC they chose to adopt.

ALI’s Consent Provision states: Consent is ineffective when induced by force, duress or deception.

Nuremberg Code

Other efforts have also been made to clarify what does and does not constitute “consent” under the law. Nuremberg Code establishes consent in the eyes of the federal government. And it is crystal clear in Nuremberg Code, when you are deprived of knowledge or information — for instance, when you are below the age of reason — while you can “assent” to an action, you surely cannot “consent” to it. In fact, the child’s parents, not the child, must sign the consent form while the child can sign an  assent form when they take part in a medical experiment.

The real definitions

Assent means “Agreement on the face of it.”

Acquiescence means “Agreement under duress.”

Consent means “Freely Given, Knowledgeable and Informed Agreement.”

In sex, you must consent to both “the action” and “the actor.”

No one should be tricked, deceived, coerced, violently overwhelmed, drugged or intoxicated into the performance of a sexual act.

Everyone has the right to determine who they allow to touch their reproductive organs based on both knowledge of the action and clear and informed knowledge of the actor.

Simple isn’t it?

But let’s make consent really complicated….. 

Here’s the gobbledygook ALI recently came up with that clouds what should be a straight-forward definition of consent…..

“A. SECTION 213.0. DEFINITIONS (3) “Consent” (a) “Consent” means a person’s willingness to engage in a specific act of sexual penetration or sexual contact. Consent may be express or it may be inferred from behavior, including words and conduct—both action and inaction—in the context of all the circumstances. (b) Notwithstanding subsection (3)(a) of this Section, behavior does not constitute consent when it is the result of conduct specifically prohibited by Section [reserved]. (c) Neither verbal nor physical resistance is required to establish the absence of consent, but lack of physical or verbal resistance may be considered, in the context of all the circumstances, in determining whether the person has consented. (d) Consent may be revoked or withdrawn any time before or during the act of sexual penetration or sexual contact. Lack of consent or revocation or withdrawal of consent may be overridden by subsequent consent. (e) A clear verbal refusal—such as “No,” “Stop,” or “Don’t”—suffices to establish the lack of consent or the revocation or withdrawal of previous consent.”

So lets take this ignorance masquerading as enlightenment apart piece by ugly piece…

“(a) Consent” means a person’s willingness to engage in a specific act of sexual penetration or sexual contact.”

No it does not! Consent means “Freely given, knowledgeable and informed agreement,” period! And that’s what it means for all things, not just sexual assault. People can express “willingness” under many circumstances that fly in the face of “consent.”

Hold a gun to their head….. they’ll agree.

Threaten their mother’s life……..please!

Trick them……. there won’t be a shred of unwillingness in their behavior. 

“Consent may be express or it may be inferred from behavior, including words and conduct—both action and inaction—in the context of all the circumstances.”

Can they make it easier for a sexual predator to claim that they had consent when they actually didn’t? Consent is not just agreement; it’s knowledgeable and informed agreement. A person who you’re tricking into sex will behave as if they agree, but still not be providing consent….. and the offender knows when this is taking place because they know the influence they exerted on their victim! “Gee Judge, she acted like she consented!” And ignoramuses like Judge Persky in Brock Turner’s case, would buy it! Either because they’re absurdly cruel, don’t comprehend the difference between “assent” and “consent,” or they just plain have a rape mentality. 

“(c) Neither verbal nor physical resistance is required to establish the absence of consent, but lack of physical or verbal resistance may be considered, in the context of all the circumstances, in determining whether the person has consented.”

The absence of consent is the result of the INFLUENCE the offender used to secure compliance. The offender of sexual assault knows what type of influence they used, even when the victims does not. ALI’s concept blames the victim for complying even when the offender used malicious influence to secure their compliance. 

So lets blur those lines even more! 

“(e) A clear verbal refusal—such as “No,” “Stop,” or “Don’t”—suffices to establish the lack of consent or the revocation or withdrawal of previous consent.”

This ridiculous expectation will be interpreted as “No,” “Stop,” and “Don’t,” are the only means to withdraw consent. A victim who freezes and is unable to utter any form of resistance is simply “outta luck!”

The American Law Institute, like much of society, is attempting to protect sexual predators with its latest absurdity.

I’m sure people will look at me like I’m crazy, but it’s true! The Chief influencers for ALI’s suggestions are the coalition of defense attorneys.

I can’t tell you how often I hear, “But according to your definition, myriads of people should be locked up for committing sexual assault!” I hear this, especially, from the legal establishment and the legislators they influence.

Well guess what, if millions of people committed murder, they should be locked up. And if millions of people committed theft, they should be locked up. If millions of people commit sexual assault, they should be locked up too! And the strain on the judicial system be damned!

The truth is, if people recognized they could be locked up for doing grotesque harm to their victims, they would either stop or they would be stopped. The volume of sexual assault would be greatly reduced.

Years ago we didn’t recognize rape if the victim was a slave. Today we wonder how not only raping a slave, but owning a slave ever existed in moral society. At some point, society becomes enlightened and deplorable practices change.  It’s time to recognize what consent is and stop blaming victims for the malicious behavior of sexual predators.

In fraud cases, most people won’t get locked up 

The reason is not because deception is not a sexual assault, but because two essential characteristics must be present to prosecute this covert, insidious, defiling crime…..

1. The victim must behave as a reasonable person would do. This means that quickly hopping into bed with a con artist is unlikely to make its way to a court room. The victim would not have a “reasonable” basis of belief if they didn’t conduct a ‘reasonable” amount of due diligence. Only cases where the offender egregiously distorted foundational fact would constitute a prosecutable case.
2. There is no proof for the vast majority of sexual assault by fraud cases, and only crimes with significant proof can be prosecuted.

So fears that half the world will go to jail if we actually recognized the importance of knowledge and information in “consent,” is simply absurd. And the concerns that our courts will be overwhelmed with cases is total balderdash. But this misconception is at the heart of the “tap dance” that prevents ALI from  stating a clear, accurate and viable definition of “consent,” which would make all types of sexual assault criminal offenses.

But there’s an even more sinister reason why consent is not treated properly in penal law….

Some law makers simply don’t want to end sexual assault. Why do you think that could be?

Please write to Prof. Stephen Schulhoffer, (NYU & ALI) at schulhos@mercury.law.nyu.edu, to let him know that consent must be properly defined in our laws!