A Rejoinder in the Discourse on Negotiation Before Sexual Penetration

Michelle J. Anderson
I thank the five commentators for their insightful analysis and critiques and I am pleased
to engage them in a dialog based on their remarks.
Under traditional rape law, as well as under the No and Yes Models of reform, the
question of consent asks what the victim acquiesced to allow the defendant to do to her.
When non-consent is required, the mens rea question is: What did he infer (based on her
verbal and non-verbal cues) she acquiesced to allow him to do to her? In these
circumstances, negligence may be an appropriate standard. As Andrew Taslitz explains,
men may not be (but should be) aware of a substantial and unjustifiable risk that the
sexual penetration they engage in is not consented to.
By obviating the importance of the defendants subjective appreciation about consent,
Robin Charlow argues, the negotiation model runs counter to the general principle that
the more serious the crime, the higher the required culpable mental state. Kimberly
Ferzan argues further that the Negotiation Model imposes strict liability. However, the
Negotiation Model actually retains traditional criminal mens rea. An actor would rape
purposely when it was his conscious object to engage in sexual penetration that was not
negotiated and agreed to. An actor would rape knowingly when he was aware that he
penetrated someone without negotiation leading to agreement beforehand. An actor
would rape recklessly when he consciously disregarded a substantial and unjustifiable
risk that he did not negotiate an agreement about the sexual penetration with his partner
beforehand. Of course these rapes would be lesser offensesand deserving of lesser
punishmentthan rapes that included extrinsic, violent attacks. Reasonable mistake
should be a defense: the actor honestly believed that he engaged in negotiation and came
to an agreement about penetration but he did not actually do so.
Contrary to Ferzans position, I do not embrace a sex as contract model nor wish to
import contractual negotiation principles into the criminal law; I only wish to emphasize
the importance of mutual consultation. Although fraud in the inducement vitiates a
contract, there is scholarly debate about which deceptions should criminalize sex. I think
it is easy to draw a line between someone who preys on a woman with mental disabilities,
conning her into believing that sexual penetration is medically necessary to prevent her
death, and the woman who lies about her breast augmentation to obtain sex. That said,
the Negotiation Model does not mandate that the line fall in a particular place, so perhaps
I spoke too broadly: some, not all, misrepresentations should be evidence of failure to
negotiate.
Ferzan poses the problem of freshman frat party sex and wonders how the Negotiation
Model would distinguish between good drunken sex and bad drunken sex. The
distinction would be between those instances in which two people negotiated and agreed
to engage in (drunken) sex and those in which they did not. Alcohol loosens inhibitions,

but it does not ordinarily take away the ability to talk and consult with one anotherand
when it does, the sex is already rape under the status quo.
Charlow and Sherry Colb both contend that people do not talk and consult with one
another about whether they want penetration. An identical premise leads to opposite
conclusions. Colb worries about under-enforcement. She posits that a rape statute under
the Negotiation Model would be ignored and may increase jury nullification. Charlow
worries about over-enforcement: imprisoning a generation of young men,
disproportionately poor and African-American.
First, I am not sure about Charlow and Colbs shared premise that we do not negotiate
sexual penetration. The mores in this area are changing and people increasingly do. A
woman whispers that she wants to go down on her date and he whispers back, Wow, that
sounds like fun. Two men agree not to have sex because neither brought a condom with
him. A boy tells his girlfriend, You really turn me on but I dont want to have sex
because were too young, or You really turn me on and I want to have sex with you,
and, in either case, she says, I feel the same way. We do not think of these interactions
as negotiations but they are exactly that. Anytime partners discuss sexual desires and
boundaries regarding penetrative acts, they are engaged mutual consultation.
Second, I am not sure that the Negotiation Model poses too great a risk of under- or overenforcement. I advocate substantial education about the social and legal importance of
discussing desires and boundaries before the Negotiation Model becomes law, which
would help with both potential problems. Regarding under-enforcement, juries,
prosecutors, and judges may resist reform; some have certainly resisted the No Model as
it has been adopted. I do not see any reason, however, why rape law requiring mutual
consultation would not earn the same acceptance over time.
Regarding over-enforcement, further rape reform will not likely exacerbate the
disproportionate incarceration of men of color. Those incarcerated for rape are more
likely to be white than those incarcerated for other offenses,1 which may speak to the
devaluation of women of color victimized by this overwhelmingly intra-racial crime.2
Unlike Charlow and Ferzan, who contend that the Negotiation Model is radically
different from the status quo, Marianne Wesson believes it is basically the same. She
argues that failure to negotiate is at least as slippery as non-consent, positing, a variety
of gestures, verbal and nonverbal, may be put forward as a plausible claim that they
constituted negotiation (just as a variety of gestures have been argued to constitute, and
not to constitute consent).
Some ambiguity may be inevitable no matter how a criminal code defines rape, but the
focus of the inquiry will be qualitatively different. The Negotiation Model fixes on the
actor rather than the victim. Rather than asking, what did she do to imply nonverbally
1

LAWRENCE GREENFELD, BUREAU OF JUSTICE STATISTICS, SEXUAL OFFENSES AND OFFENDERS 21 (1997).
Those incarcerated for sexual assault are substantially more likely to be white. Id.
2
In about 88% of reported rapes, the victim and the offender are the same race. Id. at 11.

that she wanted him, it asks, what actions did he take to demonstrate that he wished to
penetrate her only after they agreed? It requires discussion and participation by both
parties. The process part of the proposalconsultation leading to shared understanding
is its contribution.
Wesson points out that some discussions would fail to legitimize ensuring sexual
encounters because the discussants chose to conclude the negotiation without
consenting, and argues, therefore, that one cannot get away from consent. Note: these
people are talking. This is a huge step beyond what the law currently focuses on, must
less requires. The Negotiation Model provides a different lens to analyze these cases,
getting to yesor noby a process of discourse. Acquiescence implied by non-verbal
cues is how the law usually interprets consent. Requiring agreement forged through
meaningful (presumptively verbal) communication is an advance in valuing women and
humanizing the law.