Why Is Defining Consent So Difficult?

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Jennifer Morinigo: Welcome to Reasonably Speaking. Today I welcome Aya Gruber and Jennifer Long. Aya is a professor at the University of Colorado Law School where she teaches and writes in the areas of criminal law and procedure, critical theory, feminism, and comparative law. She's the author of the forthcoming book, The Feminist War on Crime, which tells the story of how feminists and their quest to secure women's protection from domestic violence and rape became soldiers in the war on crime and contributors to mass incarceration. Jennifer Long is the chief executive officer and co-founder of Equitas, a nonprofit organization focused on developing, evaluating, and refining prosecution practices related to gender-based violence and human trafficking. Formerly, she was an assistant district attorney in Philadelphia and director of the National Center for the Prosecution of Violence Against Women at the American Prosecutors Research Institute. Welcome, Aya and Jennifer. Thank you for joining us on Reasonably Speaking. 

Aya, I'd like to start with you. Can you give the audience a little bit of a recent history of consent law in the US?

Aya Gruber: Yes. I actually want to go back a little bit before recent history to say the turn of the century and what laws look like then. Outside of the South where there were very racialized rape laws that a lot of the time over penalized black men for making advances at white women, the general frame of rape law was that if a woman cried rape, it was very difficult for the prosecution to prove that a crime had occurred. States required that women resist to the utmost under the idea that women had to be so chased that they would rather die than submit to a rape. There were corroboration requirements where in the absence of some really independent and objective corroborating evidence like serious injury, it wasn't a rape. There were chastity barriers where you could prove there was no rape if she had a reputation for being unchased.

There were reporting requirement barriers where if she hadn't made a fresh complaint, there could be no rape. So you could imagine the legal landscape as being very, very difficult to ever prove. I mean, unless of course there was this racial motive or there was some other thing going on, but in an ordinary sort of woman claims rape case, it would be very, very difficult doctrinally to get a conviction. So the state of the law before, I would say the last several decades until the modern era was extremely patriarchal in that it was very, very difficult to prove a rape. Now, starting in the late 20th century, systematically states started eliminating those old requirements, the requirements of corroboration, resistance to the utmost, fresh complaint. And then many states had consent standards, but states also had what we call force standards where in order to show that there was a rape, there had to be some additional violence.

It wasn't just a matter of engaging in the sex act, but there had to be something else going on. And this led to cases where, for example, you would have people taking advantage of young children in their house using subtle threats, "I'm going to send you away," using psychological coercion, and all of these weren't falling under physical force. So in recent decades, courts thought this was a problem and there was a way that they broadened rape to sort of catch these cases where it wasn't a punch in the face, but it was a more subtle coercion. Either they moved to consent, which made the violence unnecessary, or they moved to broadened definitions of force, emotional coercion, subtle force, emotional threats. And so that's a long way to come, but the law's changed quite a bit.

Morinigo: So my question for you, Jennifer, is the question of consent. It's why we're here. There’s a thought that the old thought is that unless the woman said no, she said yes.

Jennifer Long: So I mean, this is something that seems so simple and forthright, but I think you make a good point that there's still a lot of maybe disagreement out in the community. But in essence, as individuals, we are not open for penetration, for contact. It's just not something that we're agreeing to do as a matter of course. And I think we accept this in many other areas. Our purses aren't open for money, our homes aren't open to strangers, but somehow when it comes to penetration of intimate parts, sexual activity, the common sense can sometimes go out the window and this idea that somehow we need to say no can permeate. But I think when people really sit and think about it, the idea that you could come up to someone and penetrate them at any time, that they're open and available to that unless they somehow indicate that they don't want it.

When you really hear that, I think it's a ridiculous concept that everyone can agree on, but we get very caught up in the language of the law and maybe the language of consent and sometimes we abandon our common sense. And this we see happening in sexual violence cases anyway. As Aya talked about, she talked about a lot of reforms in the law and the law has reformed, but in many ways society hasn't kept up. So when we think about things that used to be required that are no longer requirements by the law, sometimes the juries will still expect them or a defense attorney will still point to the fact that there's a delayed report or that there isn't corroboration. And what they're really talking about is an eyewitness because in these cases there's usually always something more that you can point to that really supports the testimony.

But all of these things become super requirements that again, in other parts of the criminal law, we don't say, but in sexual violence cases, they can still be demanded by the jury or the fact finder.

Gruber: So I do want to respond to that because I take a slightly different view on whether the debate over what the consent standard should be is a case of people checking their common sense. I think that most people would agree that if somebody was standing there and somebody walked up to them and penetrated them, that a word wouldn't have to be said and that would either be a forcible or an unconsensual situation. I think the thing that causes so much confusion is very difficult to know in sort of intimate situations where people are already engaged in some level of intimate activity, exactly how much communication needs to be going on in order to proceed to the next level of intimacy. And one of the ways that we would love to sort of solve any of those dilemmas is to just say, "Well, just ask for a yes." And that's what some of the college codes do.

The problem is it really runs a little bit counter to norms of human sexual behavior when they ask college students and others, "How did you negotiate your last sexual encounter?" They say nonverbal signals a lot. They say, "My signals were subtle. I let him undress me. I let her kiss me." And so when you're intervening the criminal law in that situation, especially with the penalty of a felony, which has a lot of collateral consequences and is a pretty big deal, you want to try to get it right where you're not under punishing, where you're not making it impossible because you've got such high standards that unless there was like three eyewitnesses who could swear in a Bible that it happened, it's not a rape, you don't want to create those. On the other hand, you don't want to get into situations where you're criminalizing honest mistakes, good faith mistakes, young people acting within the norm.

And I think in our desire to make something that is very messy, clear, we could tend to do that because to us it's so simple. I would not do that without a yes, but the world isn't that simple.

Long: So I think you raise a really good point and I think it's helped because my world has been around this, very practical on that. We've had to work with just really the facts and a lot of imperfect laws. So really just finding a path through to not only understand what happened and if it met the elements, but to demonstrating it. So in the course of doing trials, we're really looking at, we're breaking down normal intimate interactions into the smallest parts to figure out if it's reasonable, if it was reasonable for someone to think that a victim was saying yes to something. Because again, we're starting from the point of, and oftentimes, what was the victim doing that made you think she was saying yes or that you didn't hear the no, if that's the case? And so in doing so, looking at, I mean, do you have a victim who is, if you've got someone who is.

I think the difficulty comes in when you have someone who is consenting to some of the lead up or some of the contact. The bottom line is that consent to one thing isn't consent to everything. However, when we're looking at these cases, we have to analyze what a defendant reasonably should have known, should know, did know from the circumstances. But when we think about what some victims will talk about, they'll say, "I definitely wanted to kiss the guy or if we have male victims, I definitely want to engage in kissing. I definitely want to take my clothes off. I then wasn't really comfortable. And when things started progressing, I shut down completely. And whereas before I was very vocal and moving, now I became totally still." Now from my perspective, and this is where we might go back and forth, that change in behavior, that to me under the criminal law, because of the harm that can come from penetration and contact, that should be recognized of there's been a change in circumstance of the person that I'm with.

So I'm either overriding it or not seeing it if I'm not hearing the not yes anymore to what's going on and it is a time to check in. And again, you certainly, and this is where we rely on prosecutorial discretion, you certainly don't want to criminalize when someone is moving towards something that seems reasonable and then once gets an indication that it isn't, then stopping. But there are a lot of other indications where the activity just moves through regardless of what the victim is doing, sometimes in the face of very clear no, very clear movements of no, and sometimes in the face of complete inaction, complete immobility, which I also think is a no.

Gruber: I mean, and I wouldn't disagree with that. I think the problem is when you try to codify all those examples into law. So I think one of the things that we may have in common is that it really is a totality of the circumstances thing. There are sort of two elements to it. So for anybody who wants to have sex with another person, what we're saying is you need to have consent, which one element of is that other person's mental willingness to engage in the act. Well, we're not mind readers, right? We can't know anybody else's intent at any given time. So then the question is, what are the external manifestations that you're relying on to determine whether or not this person is willing to have sex with you? Now, one complication and we could say what is a willing mental state, what is into it, but I'm going to leave that to the side.

I think if somebody's just completely passive and curled up into a fetal ball that most jurors would say that this is pretty obviously not consenting. The problem is if you say passivity can't be consent, if you put that in a statute, that's also going to cover situations where, like in the studies, well, I allow myself to be undressed and I kiss them back and I kind of. And so it's very, very hard to capture that subtlety in the law. And there are two approaches on what to do. One is over criminalize and leave it to prosecutorial discretion, which is a decent option. Now, I'm not saying anything bad about the prosecutor I happen to be with because I'm sure she has exercised her discretion in the best way, but I do worry about the tendency to overcriminalize and want to cover every little contingency in the hopes that prosecutors will work it out because some prosecutors will really work it out in the best ways.

And in other ways, we know that conscious and unconscious biases play roles in assessments of rape, both on the defendant and the victim side. Does defendant seem like a bad guy? What are all the things that go into whether he seems yucky? Is it racial? Is it socioeconomic? On the victim side, how traumatized does she seem? Does she seem like a true victim? Is she too strong to have. So you can imagine not with a thoughtful. I would even say with thoughtful prosecutors, unless you're really, really working on sort of never having these biases, if you give prosecutors sort of a carte blanche to say, look, you figure it out for us because the law is too complicated, you're going to get some results you like, but I also fear that you're going to get results that you really didn't intend and didn't want.

Long: As a prosecutor, obviously we're going forward on cases, but one of our responsibilities is to safeguard defendant rights. I mean, we're one of the only people in the courtroom who's really looking for the truth, if you will, in that way without an agenda as we should be. So I think there's a healthy concern about discretion and how it could be abused. In these particular cases though, what all of the studies, and the attrition studies, really looking at how criminal cases, criminal sexual violence cases are processed through the system, time and time again, the numbers of reports versus the number of cases that actually proceed to verdict, there is a huge drop off of cases oftentimes because regardless of what the law says, prosecutors are still searching for different aspects, different pieces of evidence to strengthen their case in order for them to meet their ethical obligations.

And I'm not smiling that the ethical obligations are very hard. What I'm reflecting on is, unfortunately, what happens is sometimes those ethical obligations, they get translated into a speculation of what a jury will do. So instead of thinking, based on all of the available admissible evidence, if I had an educated fact finder, what should they do in these cases? What ends up happening is prosecutors saying, "This is what I have and my juries don't like these cases and I can't get a conviction, so therefore ethically I can't go forward." And that to me is speculation and it can be based on really not a knowledgeable analysis of the evidence that they have in front of them.

Morinigo: So it sounds like it's really difficult to prove consent, to talk to juries, to break past experiences that people have had with rape law. So affirmative consent is out there. Yes means yes. Why is criminal law not going in that direction?

Long: It's interesting. I live in the criminal world, so my definition of affirmative consent is knowing and voluntary agreement to do something. So again, when it comes down to how we show that every day in a courtroom, it's what did this person do that indicated that this is the activity that they wanted? I think I may have better experience with yes means yes in other forums, but I think again, this is an area where if we really stop thinking about the label and think more about what is the conduct that the criminal law should really be covering, what is the harm that's done when we don't impose restrictions where a victim, a person has to indicate willingness to something, that's when I think we end up fighting amongst each other instead of trying to make the best law that we can.

Gruber: Yeah. I mean, I would say that if yes means yes where, "Hey, let's look at the totality of the circumstances and see in a reasonable manner whether this person thought that they had consent," I would totally agree with that. But from my experience, yes means yes, at least in the college realm, in the campus realm, there are a lot of administrators who will give lip service to it quite literally has to be a certain word or it has to be so clear that there can be no ambiguity. And that's when you have sort of like an over punishment thing. The interesting thing I've noticed amongst my students is that they grasp onto yes means yes to give them an answer in very difficult contested cases. So I always start my rape section with a hypothetical that's very fraught. You have a college student and they were both drunk who says that she was forced.

And then you have another college student that the accused who said he didn't force her, and then there are various credibility problems with each of them. So I really wanted them to talk about credibility force and how hard these cases are. And what I've noticed in the last few years, since yes means yes has become a thing, they all say, "Well, under any other standard than affirmative consent, we'd have to not convict because we're not convinced beyond a reasonable doubt. But if it's yes means yes, we convict." I say, "Why? This isn't a case about whether. I didn't even tell you whether a yes was uttered or not. This was a straight up force case." But what I've noticed is even the most sophisticated students take yes means yes to say, "When in doubt, convict." And that is a little bit of a worry to me because they know that nobody says, "May I do this?

Yes. May I do that? Yes." They know it's a difficult issue. They don't know what to do. They feel very conflicted given everything we've been saying. So my worry is that nobody really thinks literally yes, only yes means yes, but they are going to use the standard in such a way that we might want to trace it and understand how it's going to be done.

Morinigo: So one of the things that you've told me is that we do treat sex differently than other potential crimes. I should say we treat criminal sex differently than we treat other crimes. Aya, I'm going to actually ask you this question because you've used the term sex exceptionalism. Can you tell me a little bit about what that means, how you define that and why you think that is?

Gruber: I think sex exceptionalism just means that you treat the act of sex or anything having to do with sex differently than acts involving the human body that aren't sexual in nature. Even assaultive acts that aren't sexual in nature are though of very differently than assaultive acts that are sexual in nature. Movies that aren't sexual in nature are though of very differently than things that are sexual in nature. Now, why is that? Because I do think that we live in a sex exceptionalist society. I think sex is considered an activity, you could say for better or worse, that's either more fraught or more joyous or more in need of regulation or less in need of regulation, but people really do see sex as something apart from everything else. I think that causes some issues in rape law because you do want to be criminalizing sexual touching.

On the other hand, do you want to criminalize sexual touching when branding somebody, a sex offender, carries so many connotations in this society? I also think just from a feminist position, a lot of the reason why we have sex exceptionalism comes from sort of Victorian moral norms that were never that good for LGBT people, for example, interracial relationships and for other things. So I think we really struggle with, in the law reform part of it, recognizing the fact that yes, sex is held as different in society and yes, when women have sex under the same conditions of men, they can feel very differently about it and probably worse. So if you have a girl college student and a guy college student and they're both drunk and they have sex, you can imagine on a purely gendered level that the guy could wake up in the morning and his friends go, "Did you know you had sex last night when you were so drunk?" He's like, "Oh my God, I barely remember, but that's awesome." And you could have the woman wake up in the morning and her friends could be like, "Hey, we think you had sex with that guy las night." And she said, "What?

That's horrible." And so we really have to recognize that yes, there is a gender differential here and yes, there is sex exceptionalism here and it exists in the world, but the problem is if the law reflects it, maybe we don't want women to feel ruined by sex. Maybe we don't want LGBT people to feel like they're living in marginality. So it's a real dilemma of either reflecting social inequality, but at the same time reinforcing it.

Long: So I have maybe a complimentary view of where this comes from, why it's treated so differently. I mean, I think it is true that when jurors and others come in, sometimes they conflate sex with rape, and I think it is because we have so many experiences with consensual sex and it's so difficult even with all the stats talking about how many people are the subject of sexual violence. It's so hard for people, maybe even victims to really put themselves in the position of others who have been victimized. And as a result, it's difficult sometimes to understand the trauma that is reported by survivors, either children, adults, elderly, who have been felt that they've been invaded in the most private of places. And perhaps it's because as we're raised, you're told what parts of your body are intimate, but there is another piece of it where individuals, regardless of their sexual patterns, consensual sexual patterns, that they remarkably continue to report the violation and the harm, the psychological harm, put aside any fear of STIs or anything else of being violated in that way as so high.

I think that it's something because it oftentimes doesn't leave physical marks that it's very difficult for the outside viewer to understand how horrific this was and why it was horrific for the particular victims. It can be not only the physical act of being invaded like that, but oftentimes it's done by someone who this person trusted. And so then there's a lot of self-blame and a lot of other psychological pieces that come along with the crime that does make it different from other crimes.

Gruber: Yeah, it's an interesting dilemma because it is different, right? I mean, and so why is having suffered a sexual assault different than having suffered a physical assault, for example, for a woman? And one of the reasons why is, and not to sound too postmodern, but the meaning of sex in modern society, and some of those are based on the idea of a sexually violated person is responsible for their own violation. They're guilty, they're impure, and these kind of ideas floating around. The dilemma is, we know that discourse does affect ideology. There are studies that women who are already sex averse fear rape most, feel most insecure, may feel more trauma.

It's a very difficult position where you want to recognize, yes, rape is different, but you don't want to reinforce this idea that rape victims are ruined and traumatized and should be traumatized for life. The law has to really walk a fine balance there. One other thing I'll say about trauma is I think it can be argued that one of the downsides of handling these kinds of traumas and sexual offenses within the criminal system is that trauma doesn't always neatly match up with culpability. So for example, you could have a victim that is very traumatized, but one of the reasons they're traumatized is that it wasn't so forceful and they're blaming themselves. When they do studies of traumatized victims, they're not a hundred percent consistent. So life threat is traumatic, but also the absence of life threat and the fact that you knew the person and you feel you were responsible is traumatic.

And so you could have a guy that uses force and produces a less traumatized victim than somebody who didn't hear a no or was their regular date and just went a little too far and really traumatized the person. And both the victims are traumatized and they require aid, right? I think the government has a responsibility to victims of crime and other social dysfunctions, but how does that dictate then the punishment, right? And so it's a very difficult thing to match up the culpability of the offender with treating the trauma of the victim. Put on top of that, that legal disputes are traumatic for anybody to go through, that it's just a very difficult dilemma.

Long: Yeah. It's interesting that you talk about the mismatch between trauma and criminal liability because I think in gradation of rape and sexual violence crimes, this is where you'll see this a lot, where based on maybe the particular elements, something will be graded less seriously than something else, and you may have a victim feel that somehow that the crime that the defendant is on trial for doesn't accurately reflect what they're feeling inside. I mean, I think that's a very real piece of it. The other thing that's very interesting, and again, we hear this a lot, particularly individuals who are in the life, prostituted sexually exploited women, oftentimes because of the incredible violence that they're subjected to all the time, will normalize or minimize in the reporting of the crime. It's why the criminal justice system, it's not going to fix the trauma, it's not going to end all harms, but for some individuals, it provides the one area of voice and justice that is available, especially for some of the country's most vulnerable people.

So in that way, I think really responding to it and really understanding what consent looks like and how important it is to protect individuals from forcible or other behavior that just disregards their personal autonomy and disregards their personhood is just very important.

Morinigo: I've heard a lot of preconceived ideas of what rape is, what a victim should do versus the reality of what rape is and can be and how a victim reacts to it. Can you tell me a little bit, are you seeing jury instruction change? Are you seeing improvements in the courtroom? Are you seeing some of this live in person in what you're doing day to day in your studies? Are you seeing this improve in any way?

Long: I mean, one thing I think we really have seen in the last probably 20 years is this general acceptance of expert testimony on victim behavior, and that could be behavior that might be the result of trauma, but it's more just general victim behavior. And the reason that that came about, and when I say that, I'm talking about delays in reporting, things that do not make someone, it's not syndrome testimony, we're not mapping, we're just having to explain dynamics that frequently the fact finders would just automatically assume meant that a victim was not credible. I think the acceptance of those statutes, and in some ways, the infrequency with which some experts are called to testify about these things might be a good indicator that the community understands sometimes victims aren't going to fight back, even though resistance isn't requirements and they may want to understand why would someone have continued contact with an offender?

Why would somebody not report right away? Why would somebody not fight back? And so all of those things, I think they're becoming well understood that they're not part of cases.

Gruber: So it's interesting because I think that there is just a wide polarized gulf on opinions on victim credibility. So you've got a camp that just is very naturally skeptical of women who report rape. And I sometimes still hear in my classes like, "It's so easy to make up a rape if you don't like somebody." And I say to the student, for example, "But anybody can call up and make up any crime that you did. I mean, anybody can make up a crime about anybody." And then you look at what their motive to lie is. Why would you particularly choose rape? So there's still a category of people who think women are inherently liars. They're just sitting around waiting to accuse somebody of rape. On the other end of the spectrum, what you hear a lot is believe the victim. And a lot of that translates into the most simple iteration of itself, which is believe the victim unconditionally.

And I've seen this more in the campus context, but you can have victims that don't tell the truth or even if they are telling the truth. It happened so long ago that there could be memory decay issues, imprint issues, especially child victims. They can be subject to suggestion. And the idea is if you explore any of those things, you're victim blaming. And so you have these polar opposites where victims are inherently incredible, victims are inherently credible. And I think the reality is somewhere in between. You can presume that a victim is telling the truth unless you uncover a motive to lie. I think it gets a little bit more difficult with post-event behavior, like what is or isn't consistent with having been raped. So on the one hand, a lot of people delay reporting. Maybe jurors don't understand that. They need an expert to understand that.

On the other hand, there are cases in which there's a very long-term ongoing relationship and then a breakup, which can cast doubt on somebody's credibility.You've been with them now for a year after the alleged rape and you just broke up and now you report it. And so if you get an expert coming in and saying, "Well, that doesn't matter because..." So it can be a very fraught thing because on the one hand, you don't want people to hold these misconceptions, factual errors or biases against rape victims. On the other hand, you don't want the expert testimony to so sway the jury that they don't believe their common sense anymore about motives to lie, et cetera.

Long: Absolutely. It should never cross the line. I mean, an expert is not there to offer an opinion on someone's credibility. They're there to dispel some myths, give some common reasons for things. Basically from our standpoint, just to level the playing field again so that just the sorts of things that I talked about can come through. I mean, again, from the prosecution perspective, we receive a lot of training on being trauma-informed, victim-centered, and along with law enforcement, we can tease out parts of a report, follow up on things and very nicely, respectfully search for the truth while still being a victim-centered prosecutor. And it is true that there are varying opinions on what that practice should be, but at no point should anything interfere with, especially in a criminal process. I mean, you have to get to the truth and be able to prove the truth beyond a reasonable doubt.

Gruber: But I don't think all advocates feel that way, especially sort of young advocates who are just coming to this issue through a lot of internet slogans and a lot of political activity and partisan political activity. This becomes very heated. So trying to figure out what is fair truth testing and what's victim blaming is very difficult for them. So they would say, for example, I have no doubt that some of my students, for example, would say to my hypo, "Well, of course you could be raped and then still be in a relationship with the person and then break up and then report a rape." Of course that can be true, but I mean, these are very important pieces of defense evidence. They provide motive, they provide a context. People are so siloed on whether it's anti-feminist to truth test, and then people can go overboard requiring corroboration evidence that's never going to exist like eyewitness evidence.

And people are so siloed on it and it's become so politicized that I really think that the debate is really fraught right now on how we should go about testing truth allegations and when that should be grounds to accuse somebody of being a misogynist or not. I think that's all really dialed up right now. Probably in a year it'll dial back down, but I don't know. Right now we're in a moment where I just feel like it's so polar.

Long: I think the criminal justice system in a lot of ways can be very difficult. I mean, very brutal for any victim, victims of any crimes that are coming in and of course sexual violence crimes because they are so personal. And there are a lot of fantastic defense attorneys who do a strong cross-examination without being overly aggressive and without humiliating, but can still test. So I mean, I do think right now the adversarial process, as uncomfortable as it can be, is the best system to protect both individuals' rights. From the prosecutors, I mean, we're looking at all of the evidence and we're looking at things like, and you're right, there will be times when some of the circumstances may make us think that perhaps the person had a motive for coming forward and that the allegation wasn't true. But at least from what we know of the research now, the false allegations are so rare that we really try and take all the information when it comes in.

We use our knowledge to understand, okay, people can be in relationships. So that in and of itself isn't going to stop us. The delay in report isn't going to stop us, but we're going to look at everything and we're not going to shy away from evidence that may lead us ultimately to the path that something didn't happen. And of course, if that is where we go, then we don't have any business bringing it into a courtroom.

Morinigo: So there's a lot of confusion, differing stories, differing people's. And quite honestly, the backgrounds of people. I think if you're on a jury, it really depends on what your circumstances have been to get you there. So is there something that can be done in criminal law to create a standard or is there another answer? What should the standard be for criminalizing sex between two adults?

Long: You want to give clear rules and boundaries of what's criminal, but at the end of the day, there's not an easy answer to this. It always comes down to the circumstances of the case. There's no one size fits all. It's always going to come down to the facts and the evidence and what you can uncover and what you can admit and whether or not taking all of that together, whether the admissible evidence, if presented at a case, should cause a jury to find beyond a reasonable doubt. And a standard that really bends towards the circumstances of a case and consideration of that I think is the right standard.

Gruber: I just want to mention that sex offense cases aren't happening in a sentencing vacuum. They are exceptional in the sense that in the '80s and '90s, there was a real political wave to be very tough on what people called monstrous predators. We have incredibly harsh and broad sentencing and collateral consequences for people who are convicted of sex offenses. Given that that's the situation, I mean, that just is. I mean, that's probably the worst consequence of sex exceptionalism is that it was so popular politically to just throw everything you've got. Being tough on a child molester, what could be a better platform? But these are changes in the law that really affect people. So I would say given the pretty draconian state of the penalties attached to sex offenses, you do have to be careful about making sure that your definitions really hone in on the kind of behavior that is the most intolerable in society.

So I think it's great if we want to have these aspirational standards about how people should have sex. You and I may not agree on even what the aspirations are, and I'm sure certainly not everybody agrees, but we would probably all say that people should probably be more open and communicative about it. Young people should be less anxiety ridden. They fear they're going to be rejected so much that they don't want to tell each other what they're thinking and that should change. I pretty much agree with that, that it would be great if people were less anxious, if all these encounters were less fraught with confusion and mistake, but I don't think that it should be the place of the criminal law to instill that particular cultural change because the way criminal law operates, and I think Jennifer said this, is it's fairly idiosyncratic. It gets at small percentages of the population and it tends to distribute randomly.

And it's very hard when you have very broad criminal prohibitions, but not everybody's being swept up in the sex regulatory net to even foment a cultural change through the criminal law. So that's the first reason. I don't think it's going to work. And the second reason is there's a huge cost. The cost is you're going to occasionally sweep in some ordinary actors along with the deviant actors and who those ordinary actors will be, whether they'll be the most marginalized or not, you're going to get some of them. It might not be a lot, but you're going to get some of them and they'll be the sacrificial lambs of the greater cultural change. So for those two reasons, I really think there are other ways to tackle how to have better communicative sex. I don't think consent is where to do it. I think consent is where to say, look, we all kind of know the situations where you just don't go forward and to attach criminal liability to that.

I mean, I'm generally a criminal reliability critic, but I don't think there should be an exception for rape. But I do definitely think, especially in an era where we have really dialed up punishment, the crimes should fit that which society believes is intolerable right now. And then if we have some idea of cultural changes, we should work on them elsewhere.

Long: I guess I just would say that, and again, take very seriously, there shouldn't be any sacrificial lambs, although obviously in any practice there are going to be missteps and we need to move to stop that. But going back to or continuing days where victims are raped and rapists continue with impunity because we are focused on sentences that we think are too harsh. I mean, maybe the focus has to be on thinking about other outcomes, but for the people who are suffering this, for the victims, again, they're so vulnerable that to leave somebody without an outlet for protection when sometimes the criminal justice system is that only outlet, really leaves victims without any other alternative, but to go back and continue to suffer violence with no one able to help them. So I don't think that that can be lost in this conversation.

Gruber: I mean, I'm not a victim rights expert. I would venture that I think that there are other ways to serve victims other than punishing offenders. I mean, those things sometimes match up and sometimes they don't. For example, in the Oklahoma City bombings, you had a lot of victims come up and testify that they wanted McVeigh to get the death penalty. And then you had some of those victims come back 10 years later and say, "Actually, I was so angry then and I found different ways." So there is at least within the victim's rights literature, some debate on the healing role of criminal law and how much it plays. So I'm not a hundred percent convinced that if there's a situation where somebody is going to face sort of really draconian consequences for a crime that's not the worst of the worst, but the victim suffering, that is a reason in and of itself that we want to have the law change.

I mean, I get it. You don't want to re-traumatize a traumatized victim, but there has to be some in between. Obviously prosecutors have to do this all the time. You're going to get some resolute victims in very minor cases. They had a dispute with their neighbor and they got in a fight and they want their neighbor to get the worst of their. So you can't always fashion the criminal system around what either the victim demands or what you think the victim needs. There are other considerations and sometimes you have to separate serving the psychological, financial, material, and emotional needs of the victim from the sort of punishment deterrence process. Well,

Morinigo: It seems like if there’s a good news, it sounds like we’re getting more toward understanding that that is something the victims need. They need the support, they need the understanding, and they need to be treated as victims. And they

Long: Need the safety. Yeah. And they need the safety and communities need to be able to account that their communities are safe. And some of us can do that in a different way than others, and it's just important to remember not to sacrifice one for the cause of the other.

Morinigo: Well, thank you both very much.

ALI: Thank you for tuning in to Reasonably Speaking. Visit ali.org to learn more about this important topic and our speakers. Don’t forget to subscribe so you never miss an episode. Reasonably Speaking is produced by The American Law Institute with audio engineering by Kathleen Morton and digital editing by Kristin Evans. Podcast episodes are moderated by Jennifer Morinigo, and I'm Sean Kellem.