The following op-ed was written by Erin Murphy, Associate Reporter for Model Penal Code: Sexual Assault and Related Offenses. The full article text appears below; this commentary was originally published in the Times Union of Albany, New York.
The news has been filled with anger about the “Cornell 7” case, which has revived calls to amend the state’s sexual assault laws to punish sexual acts with a person who is voluntarily but severely incapacitated by drugs or alcohol.
Unfortunately, the current proposals are likely to fall short of that goal.
The proposed amendments to state law would punish sexual acts when another person is “incapable of controlling [their] conduct and incapable of clearly expressing lack of consent” or “temporarily incapable of appraising or controlling [their] conduct.” It is true that either amendment would give prosecutors slightly more room to charge in cases like the one at Cornell. But requiring a victim to be “incapable” too closely resembles the current standard, which requires the victim be unconscious or “physically unable to express unwillingness.” By demanding total incapacity, it is possible that evidence that a person was able to move their head to vomit into a trash can, or speak in incoherent sentences, would be proof that the person was “capable” of controlling their conduct for purposes of consent.
Some people have suggested that the law should equate sex with driving and treat anyone who crosses the legal intoxication threshold for driving as incapable of giving consent. Although that may sound reasonable at first pass, that surely cannot be. We set a low standard for impaired driving because there is no social value in allowing a person to put others at risk when they are even the tiniest bit impaired. But much consensual sexual activity occurs when people are impaired by drugs or alcohol, and to declare all of that wanted, welcome activity inherently criminal would undermine the integrity of the law and invite arbitrary prosecutions.
Two drinks at a party may render a person incapable of driving home, but it should not preclude their ability to consent to a wanted and welcome sexual encounter as a matter of law.
The trouble is that it is hard to agree on, much less state in words, the precise line between when the law should recognize the right of a pleasantly drunk person to give consent, while foreclosing consent when a person is severely impaired. But legislators do not have to write on a blank slate.
The American Law Institute, a 100-year old independent institution whose mission is to clarify and modernize the law, last year published a model criminal code that addresses this exact question. Those provisions were the product of over a decade of debates, research and consultation with experts. They were then approved by a vote of the entire membership, which hails from all corners of the United States and includes judges, lawyers and legal scholars working at the highest echelons of the profession.
The American Law Institute’s original Model Penal Code served as the inspiration for New York legislators back when New York adopted its criminal law in the mid-20th century, and legislators could benefit from its guidance again now.
The revised code punishes sexual activity in two situations that might have applied here: first, when the other person is “passing in and out of consciousness,” and second, when the other person “lacks substantial capacity to communicate lack of consent.” The first standard draws a clear, bright line that is easy to teach and recognize. The second will inevitably leave it to jurors in some cases to decide whether a line has been crossed, but it properly focuses on a person’s ability to communicate as opposed to what might be going on in their head, and recognizes substantial, and not just total, impairment as the proper place to draw the line.
It is these standards, rather than yet another ambiguous rule that requires total incapacity, that would have offered greater protection to Jane Doe in the Cornell case, and would have given the accused young men clear notice that their conduct constituted a violation of criminal law. Although the Constitution rightly prevents retroactive application of the criminal law, and thus even if the Legislature acts this spring it will not impact the case brought by Jane Doe, she might at least take comfort in knowing that she played a role in bringing about overdue change.