The concept that "no means no" has become so firmly ingrained in the public discourse that it may surprise you to learn that in most states in the U.S., the legal definition of rape requires more than just ignoring someone's protests, but also the use of physical force or threats. As Deborah Tuerkheimer, a law professor at DePaul University, argues in the Guardian, that needs to change.
The time is right: The American Law Institute is revising the Model Penal Code for the first time in more than 50 years. If they rewrite the code to define rape as having sex with a nonconsenting person, that could then help various states to revise their own laws to make it easier to convict rapists who use methods other than overt threats of violence to commit their crimes.
Tuerkheimer notes that while legal wording that says "that a woman could not be raped if she did not resist her rapist" has been "softened or eliminated" in most states, the requirement that force or the threat of it be present to consider the act a rape continues to be a problem in prosecuting many sexual assaults. Most rapists are smart enough not to use physical force or even overt threats to get their way. They prefer, instead, to isolate the victim physically and allow the implication that things could get even worse for her if she fights back to subdue her. In most cases, rapists also zero in on women who have been drinking, because it makes them more vulnerable to intimidation techniques. In cases like Steubenville, Tuerkheimer explains, the victim was so drunk as to be unconscious, which means her inability to resist is taken into consideration. "Had she been less drunk, though, the prosecution would have had a far tougher time of it," Tuerkheimer argues. "The woman's non-consent, even if the jury believed her, would not have been enough to prove rape."
So what should the model legislation look like? For starters, the prosecution should not be required to prove that force or the overt threat of it was present, but instead simply be able to prove that the victim refused to have sex. Ideally, too, they would lay out "a workable definition of consent that aligns with contemporary sexual norms," Tuerkheimer writes. Women should not be assumed to be consenting to sex unless they say otherwise in blunt language, especially since research shows that most people tend to refuse to go along with activities, sexual or otherwise, with demurring language instead of blunt refusals. Instead, Tuerkheimer argues, the law should expect that people actually display "demonstrated intent to have sex." Laying there like a dead fish with tears in your eyes, hoping that he gets this over quickly so you can get away from him shouldn't be mistaken for consent. That doesn't mean that the law would require partners to draft a contract before having sex, but it would mean that a rapist would have a harder time pretending that he didn't understand what it meant when a woman repeatedly asked to go home and refused to kiss him back and wiggled away when he tried to take off her clothes, all because she broadcast her refusals politely instead of yelling "no" at him.
How much would making these changes improve conviction rates for rape? It's hard to say, since the lack of violence in most rapes means it's easy enough for rapists to lie about consent. However, these changes could send the right message to victims and help shut down much of the second-guessing that they often go through. Instead of putting the victim on trial to determine if she fought hard enough or was sober enough for her rape to count, we can ask what's wrong with a man that would want to have sex with someone who doesn't want to have sex with him. Shifting focus from the victim's choices to the rapist's choices is bound to improve the conviction rate to some degree.