This Article focuses on two neglected aspects of rape law. First, its tendency to presume sexual consent across a range of social contexts, overlooking the fact that much social life is predicated on a presumption against sexual contact. Second, its tendency to ignore a critical empirical fact: that an overwhelmingly large number of sexual assaults occur during the first-ever sexual contact between the specific parties involved—what I term “First Encounters.” The relationship between these two facets of rape law is crucial. Whereas much of social life operates with an underlying presumption that people have not consented to sex with others unless they have given clear signals to that effect—particularly in relationships that have never before been sexual—rape law does the opposite and presumes consent where it has never existed. This disconnect constitutes our greatest overlooked opportunity for meaningful rape law reform.
Accordingly, rape law has been framed around the wrong questions. The right question, particularly in First Encounters, is whether the accused sought the victim’s consent. The wrong questions—those focused on the presence of force, or the victim’s reaction to the assault—are based on an underlying presumption that consent was present if force or lack of consent cannot be proven. Any legal presumption of consent to sex contrasts sharply with how people think of their own sexual agency and how they negotiate consensual sexual relationships in real life. I therefore argue for statutory reform that focuses the analytical lens on whether, and how, a sexual assault defendant sought the other party’s consent to the encounter. I propose the offense of committing first-time sexual penetration or contact without seeking consent. In the absence of prior sexual contact between parties, the law should presume nonconsent.
* Associate Professor of Law, Louisiana State University Law Center; J.D. New York University School of Law; Ph.D, Sociology, Northwestern University. I thank Dwight Aarons, Alena Allen, Joanne Archambault, Brian Gallini, Ken Levy, Kimberly Lonsway, James Rocha, Stephen Schulhofer, Debo-rah Tuerkheimer, and my colleagues who offered questions and comments in response to presentations (via Zoom) at the University of Memphis, University of Tennessee, and Willamette University. I am deeply grateful to Louisiana State University Law Center, as well as Linda Greene and Jennifer Carter-Johnson at Michigan State University College of Law, for their support of my work. I also thank Alisa Plaisance and Sydney Curtis for superb research assistance.
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