Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, and Other Difficulties of 'Affirmative Consent' in the ALI's Draft Sexual Assault Provisions

The American Law Institute’s draft amendments to the Model Penal Code’s sexual assault provisions address the problem of unwanted sex through the use of proxy crimes. The draft forbids sex undertaken in the absence of certain objective indicia of willingness, or in the presence of certain objective indicia of unwillingness, even though the serious harm of sex with an unwilling partner does not always result from those situations. Proxy crimes are sometimes justified, as is the draft’s requirement that an express “no” be respected in the absence of subsequent words or actions by a partner rescinding the “no.” But proxy crimes also carry risks, some of which (in addition to other problems) are displayed by the draft’s requirement that sex occur only in the presence of “positive agreement” by the partner. Like any “affirmative consent” approach, the draft’s “positive agreement” standard must either embrace requirements that many will find objectionable or risk devolving into punishment for simple, tort negligence (or less). Imposing liability on a tort negligence standard would conflict with the Model Penal Code’s general insistence on subjective liability as a predicate to criminal liability. It would also strike many as a regrettably low standard for labelling an actor as a sex offender, and it would risk deterrent losses over time by diluting the stigma associated with the label.