Affirmative Consent, by Way of the Intoxication 'Defense'

Abstract

This short essay makes a general point about criminal law by making a specific point about the American Law Institute’s debates regarding affirmative-consent requirements in sexual assault law. Last spring, the ALI fought a floor battle over the core difficulty of affirmative-consent provisions — their reliance on objective definitions of “consent.” Rejecting the recommendation of its reporters, the Institute adopted a subjective definition of “consent,” focusing on whether the partner was “willing” to engage in the sexual activity in question. Without any change in proposed statutory language, the reporters’ latest draft commentary signals an approach that would undermine the Institute’s preference for a subjective definition of consent. The mechanism is a reversal of the reporters’ previous position on the intoxication defense. That reversal would return to the reporters’ preferred, objective approach to “consent” in the large percentage of cases in which the accused is intoxicated.