The Elephant in the Room: Sidestepping the Affirmative Consent Debate in the Restatement (Third) of Intentional Torts to Persons

Abstract

In contemporary debates about legal responsibility for sexual misconduct, the status of “affirmative consent” is front and center. Most often associated with the campus rape crisis and the enforcement of Title IX by colleges and universities, affirmative consent places responsibility on individuals who initiate sex to secure the affirmative permission of their partners before engaging in sexual conduct. Going beyond “no means no,” affirmative consent is best captured by the slogan “only yes means yes” and aims to protect those sexual assault victims who react passively or silently in the face of sexual aggression, even though they do not desire to have sex and would not have initiated the sexual activity if they had been given the choice. The criminal law in most states has not yet caught up with these developments and has continued to require either a showing of “force” on the part of the defendant or proof of a verbal objection on the part of the victim. Given its prominence, one might expect affirmative consent to emerge as a central issue in the revision of the Restatement (Third)’s provisions on consent. Instead, affirmative consent makes an appearance only briefly in the Restatement's commentary and has not affected the core black letter statements of the law of consent. Although purporting to be neutral, the approach of the Restatement (Third) is incompatible with affirmative consent, both in the Restatement's definitions of actual and apparent consent and in its determination to assign the burden of proof to the plaintiff instead of the defendant. Because there is no controlling precedent that would prevent the Restatement (Third) from embracing affirmative consent, the Restatement (Third) is free to follow the Title IX model and incorporate affirmative consent into the body of tort law. This article makes the case for adopting affirmative consent in sexual misconduct tort cases, even if the criminal law in any given jurisdiction continues to apply a more defendant-oriented consent rules.