To Have and To Hold Regardless of Consent?

TO HAVE AND TO HOLD REGARDLESS OF CONSENT?: WHY THE MODEL PENAL CODE’S SEXUAL ASSAULT PROVISIONS SHOULD NOT INCLUDE AN AFFIRMATIVE DEFENSE FOR SPOUSES AND INTIMATE PARTNERS

By: Grace Quintana, Volume 102 Staff Member

The fight for the right to control the terms of marital intercourse can be traced as far back as the first organized woman’s rights movement.[1] Feminists have long recognized that the right to vote, to own property, and to access education are hollow if a person does not have the right to control access to her[2] own body.[3] Yet marital rape exemptions, which protect married persons from being convicted of raping their spouses, continue to exist in rape law.[4] “The law in more than half the states today makes it harder to convict [people] of sexual offenses committed against their [spouses].”[5] The American Law Institute (ALI), in its ongoing project of revising the Model Penal Code’s provisions regarding sexual assault and related offenses, has a unique opportunity to provide an example of a statute that treats consent the same in all circumstances—regardless of whether or not a person is in an intimate relationship with the person who assaulted her.[6] Its September 2015 preliminary draft (the “Draft”), however, provides an affirmative defense for spouses and intimate partners who are accused of sexual assault when the basis of liability is the absence of consent.[7]

Victims are sexually assaulted by intimate partners more often than strangers. In thirty-three percent of reported sexual assaults in 2017, the victims identified their attacker as someone with whom they had an intimate relationship, compared to nineteen percent of cases where the attacker was a stranger.[8] This number is high, especially when considering the number of assaults that go unreported. Sexual assault victims are much less likely than victims of other violent crimes to report assaults to the police—and when an intimate partner is the perpetrator, victims are even more reluctant to report.[9]

Even though the Draft recognizes that denying married people protection against sexual assault is “indefensible,” it still reasons that “just because an absolute exemption is not appropriate does not mean that no exemption is.”[10] Although the default assumption “in the context of strangers and those only occasionally intimate” should be that another person is not sexually available until she affirmatively indicates otherwise, the Draft argues that this is not the case in “a more established partnership.”[11] The presumption is often the contrary, the Draft explains, because “the other person welcomes expressions of sexual intimacy” from her partner.[12] “Unwanted sexual overtures . . . take on a different character in light of the underlying relationship,” it states.[13] “Kissing . . . a spouse as a spontaneous expression of affection . . . or initiating sexual . . . intercourse as a surprise wake-up in the morning or at the end of a long night . . . notwithstanding the other person’s extreme intoxication” are acceptable acts between spouses but not between strangers, in the minds of the drafters.[14]

The presumption of consent in marital and intimate relationships, which the Draft advocates for in its commentary, is what the women of the first woman’s rights movement, and feminists long afterwards, have been fighting against for over a century. Given that the purpose of rape law is to protect individuals from sexual assault and that the drafters acknowledge the high rates of sexual assault perpetrated by intimate partners,[15] it is illogical—and dangerous—to rid a person of the right to a presumption of non-consent simply because she chose to get married or to engage in an intimate relationship. One’s status as being married or being in an intimate relationship does not mean that she automatically consents to anything her partner wants.

The Draft explains that the affirmative defense for the spouse is provided in an effort to strike the right balance, recognizing that “[a] state can offend a person’s sexual autonomy as much by denying an individual the right to exercise his or her sexuality autonomously as it can be [sic] denying that person the protection of the law against unwanted sexual advances.”[16] The Draft frames the protection of a single person’s sexual autonomy as a balance: It allows her to exercise her sexuality and protects her from unwanted sexual advances. But when a person exercises her sexuality without the consent of her partner, it is only her sexual autonomy that the Draft protects. There is no balance. It prioritizes a person’s ability to have sex without ensuring the consent of her partner over the harm to the nonconsenting partner.

The Draft already advocates for a presumption that another person is not sexually available until she affirmatively indicates otherwise in contexts concerning strangers and those who have been intimate only occasionally.[17] This presumption should not change for those who are married and are in intimate relationships. By valuing one person’s sexual autonomy over her partner’s, the Draft fails in its purpose of providing protection for victims of sexual assault.

  1. Jill E. Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373, 1385 (2000).
  2. This Post will use she/her pronouns for simplicity.
  3. Id.
  4. Michelle J. Anderson, Marital Immunity, Intimate Relationships, and Improper Inferences: A New Law on Sexual Offenses by Intimates, 54 Hastings L.J. 1465, 1466 (2003).
  5. Id. at 1471–72.
  6. Model Penal Code: Sexual Assault and Related Offenses 154–68 (Am. Law. Inst., Preliminary Draft No. 5, Sept. 8, 2015) [hereinafter Preliminary Draft No. 5]. The draft is part of an ongoing project and has not yet been approved by ALI. Stephen J. Schulhofer, Reforming the Law of Rape, 35 Law & Ineq. 335, 336 n.4 (2017). “It does not represent its official position on any of matters covered.” Id. Although ALI has issued preliminary drafts since the September 2015 draft, none revise the affirmative defense provision discussed in this Post. The Preliminary Draft from April 2016 includes the same provision in its proposed black letter of Article 213. Model Penal Code: Sexual Assault and Related Offenses 25–26 (Am. Law. Inst., Tentative Draft No. 2, Apr. 15, 2016). Changes may still be made to the provision.
  7. Preliminary Draft No. 5, supra note 6, at 154. It is not an affirmative defense when liability is based on the use or threat of physical force. Id.
  8. See Kathryn Casteel et al., What We Know About Victims of Sexual Assault in America, FiveThirtyEight (Jan. 2, 2018), https://projects.fivethirtyeight.com/sexual-assault-victims/ (explaining that in the other thirty-nine percent of cases, victims reported that their attacker “was a well-known or casual acquaintance”); see also Victims & Perpetrators, Office of Justice Programs: National Institute of Justice, https://www.nij.gov/topics/crime/rape-sexual-violence/Pages/victims-perpetrators.aspx (last visited Mar. 23, 2018) [hereinafter OJP Statistics] (explaining that six in ten cases of rape or sexual assault, “an intimate partner, relative, friend or acquaintance” assaulted the victim).
  9. Richard B. Felson & Paul-Philippe Paré, The Reporting of Domestic Violence and Sexual Assault by Nonstrangers to the Police, 67 J. Marriage & Fam. 597, 598 (2005).
  10. Preliminary Draft No.5, supra note 6 at 160.
  11. Id. at 161.
  12. Id.
  13. Id.
  14. Id.
  15. Id. at 156 (“By one estimate, 62 percent of adult rapes are committed by intimate partners.”).
  16. Id. at 161.
  17. Id.