The definition of Consent has been one of the most hotly debated issues in the project. Although it comprises only a single subsection of the Definitions section (Section 213.0(3)), “consent” is the principal concept used to distinguish lawful from unlawful sexual conduct. It is therefore critical that the concept is accurately defined.

ALI’s membership had its first opportunity to discuss and debate the definition at the 2014 Annual Meeting.  In the 2014 to 2015 Annual Meeting drafts, the definition remained the same:

SECTION 213.0. DEFINITIONS

(3) “Consent” means a person’s positive agreement, communicated by either words or actions, to engage in sexual intercourse or sexual contact.

A good amount of time at the 2015 Annual Meeting was spent debating this language.  Some members argued that the definition, as written, adopted the “affirmative consent” approach, which strayed too far from existing cultural norms.

The Reporters returned to the 2016 Annual Meeting with a different definition in Tentative Draft No. 2 (TD2):

(3) “Consent”

(a) “Consent” means a person’s behavior, including words and conduct— both action and inaction—that communicates the person’s willingness to engage in a specific act of sexual penetration or sexual contact.

(b) Notwithstanding subsection (3)(a) of this Section, behavior does not constitute consent when it is the result of conduct specifically prohibited by Sections [reserved].

(c) Consent may be express, or it may be inferred from a person’s behavior. Neither verbal nor physical resistance is required to establish the absence of consent; the person’s behavior must be assessed in the context of all the circumstances to determine whether the person has consented.

(d) Consent may be revoked any time before or during the act of sexual penetration or sexual contact, by behavior communicating that the person is no longer willing. A clear verbal refusal—such as “No,” “Stop,” or “Don’t”—suffices to establish the lack of consent. A clear verbal refusal also suffices to withdraw previously communicated willingness in the absence of subsequent behavior that communicates willingness before the sexual act occurs.

At the 2016 Meeting, a motion to amend the definition was approved by members. Movants argued that the definition, as written in TD2, placed the burden of proof on the defendant, and also that the above definition was still too close to “affirmative consent.” This new “consent” definition will go to ALI’s Council for approval in October.

The member approved definition is:

(3) “Consent”*

(a) “Consent” for purposes of Article 213 means a person’s willingness to engage in a specific act of sexual penetration or sexual contact.

(b) Consent may be express or it may be inferred from behavior—both action and inaction—in the context of all the circumstances.

(c) Neither verbal nor physical resistance is required to establish that consent is lacking, but their absence may be considered, in the context of all the circumstances, in determining whether there was consent.

(d) Notwithstanding subsection (3)(b) of this Section, consent is ineffective when it occurs in circumstances described in Sections [reserved].

(e) Consent may be revoked or withdrawn any time before or during the act of sexual penetration or sexual contact. A clear verbal refusal—such as “No,” “Stop,” or “Don’t”—establishes the lack of consent or the revocation or withdrawal of previous consent. Lack of consent or revocation or withdrawal of consent may be overridden by subsequent consent.

 

*Approved as amended at 2016 Annual Meeting; approved by Council Oct. 2016

Jennifer Morinigo

The American Law Institute

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