Consent: Yes Model vs. No Model

There are many who misunderstand the true definition of rape and consent. If you are under the impression that a person needs to say the word ‘no’ in order for a sexual act to be considered rape, you are greatly mistaken. Consent is not the absence of the word ‘no.’ In fact, the very opposite is true. Consent is only present if there is a ‘yes.’

New Jersey defines consent as “affirmative and freely-given permission.” Further, that “permission may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances.” Here I will aim to unpack those two statements.

The Yes Model

Each jurisdiction throughout the United States uses either the Yes Model or the No Model for defining consent. As of 1992, New Jersey has used the Yes Model, which has been employed by a growing number of states. I have no doubt this will be the predominant model within time.

The Yes Model simply states that consent must be communicated in some way before the couple engage in sexual activity. New Jersey calls this “affirmative and freely-given permission.” You need to receive this permission before every sexual act, whether you and your partner have been married for 20 years or you’ve only just met.

A person may grant permission either verbally or it may be implied by one’s conduct. This may also be different according to certain circumstances. Some couples develop their own way of communicating this permission. All that matters is that the communication is made. Moreover, consent to one act does not imply consent to a different act.

The No Model

In contrast to the Yes Model, the No Model requires that the victim communicate that she is not consenting to the sexual act. There are many reasons this model is erroneous, and has therefore been rejected, including:

• Burden is on Victim to stop the assault. In our society, we do not expect victims to be capable of preventing crimes, especially where known psychological effects can cause a victim to ‘freeze’ or where the attacker may retaliate in a violent way.
• Results in Legalism. Some perpetrators justify their illegal actions through willful blindness. Willful blindness is, in layman’s terms, ‘playing dumb.’ As an example, this may include pretending not to hear a victim’s objections or ignoring her unease or discomfort.
• The Victim may be Violated Before Having a Chance to Say No. A victim won't say "Stop!" unless something has already started. A victim won't push unless someone has to be pushed away.
• Grossly Underinclusive. Every time a victim is completely passive to the act, meaning he does not consent nor withdraw consent, would be deemed consensual. If this sounds reasonable to you, perhaps take a look at People v. Warren, 446 N.E.2d 591 (Ill. App. Ct. 1983).

The Warren case was about a young woman who was riding her bike through a trail. She stopped to drink her water and met a man who was close in age to her. He seemed harmless enough. The two spoke for a few minutes, then the woman went to get back on her bike. Before she could leave, the man grabbed her arm and said "This will just take a minute. My girlfriend doesn't meet my needs." Then he picked her up, carried her into the woods and raped her. Only the appellate court reversed the jury's conviction, finding that it couldn't have been rape because at no point did the woman yell or scream or fight. She acquiesced to what was happening. This was probably because the strength of the man was threatening enough and no one else was nearby. After all, a man willing to carry a stranger into the woods may be willing to commit more heinous crimes. The victim instinctively went passive. She never said "No."

There may be some who still believe that a case like Warren really isn't rape. If it wasn't rape, then it was consensual. In other words, this woman actually wanted to be picked up and carried into the woods to have sex with a stranger. Is that correct?

Yes Model vs. No Model

The Yes Model is the better model as it more closely resembles a natural way of engaging in sexual activity. Under this model, if both people consent, then the couple may proceed. If one of them is being unusually passive, the other knows to stop and make sure everything is okay. This is just something that decent people do. Under the No Model, however, a person only knows to stop engaging in the act if his partner communicates a lack of consent (i.e. says “Stop!” or pushes partner away).

Under the Yes Model, a couple is sure to avoid causing psychological harm to one another because they will have most assuredly only proceeded with consent. There is no guesswork involved. If one is unsure of the other’s feelings, he can stop and ask his partner what she is thinking.

The No Model, however, leads to people selfishly taking advantage of their victims who may succumb to a state of frozenness. The victims may not say ‘no,’ but they also don’t say ‘yes,’ leaving a large number of people without any legal recourse.