As the Cornell 7 case dominates our headlines, a familiar pattern has started emerging. There is a predictable lifecycle to these cases. First, there is the shock of the allegation and the immediate outrage for the survivor, but after the shock wears off and weeks pass, the debate becomes an examination of every action the survivor has made in search of evidence that consent was, or was not, communicated clearly.
With Jane Doe, we’re watching as her text messages are dissected and her alcohol consumption levels are scrutinized, while netizens debate whether she was truly raped for seven hours or if she somehow misled seven men into believing they were engaged in a consensual act.
The fact is that every sexual assault case begins with a question of consent, and yet New York law has no definition for consent in its entire sex crimes penal code.
The oversight seems small and inconsequential — until a jury is left to determine what constitutes justice, even in a case as serious as a serial rapist like Harvey Weinstein. While deliberating his verdict, jurors sent a note to presiding Judge James Burke asking for a definition of consent, and the judge responded simply with “Use your common sense.”
However, what is common sense worth when our collective understanding of consent is wrong and shaped less by reality than by myth?
For decades, we have researched and documented the divide between how Americans understand and experience sexual violence, to the point where many survivors never describe their experiences as rape. One meta-analysis found that more than 60% of women whose experiences met the most restrictive legal definitions of rape did not identify or label their experiences as rape. This number is even higher for college-aged women and does not include the number of unlabeled sexual assaults.
The unwillingness to label comes from a deeply flawed cultural understanding of what a “real” rape looks like. In the American story, a rape occurs when a sober stranger attacks a sober woman in a dark alley. She fights back physically and repeatedly through obvious violence, but is eventually overpowered and subdued; there is no room for the slightest sense of ambiguity about what took place.
The problem is that real life often varies from this narrative. Rapes occur between classmates and friends, dating partners, and spouses. They unfold in situations where coercion and social expectation matter just as much as physical force. They happen in houses and bedrooms and parties, and it is not uncommon for one to involve alcohol. The script we have written for rape, however, still influences perpetrators, survivors, witnesses, law enforcement officers, and jurors — and the farther away a situation moves from this narrative, the less likely we all are to label it as rape.
What happens when this twisted accepted version of common sense enters our legal standards? We are effectively asking 12 strangers to bring their personal assumptions into the deliberation room in a game of legal roulette.
Equal justice under the law must depend on facts and evidence, rather than 12 jurors miraculously sharing the same unwritten definition of consent. Definitions tell people where the legal boundaries are and provide a framework for accountability when those boundaries are crossed.
New York Assembly Bill A1140 and Senate Bill S5521 would finally provide New York with a statutory definition of consent, defining it as “a freely given, knowledgeable[,] and informed agreement by a person with the capacity to reason.”
Of course, this proposal would not, by any means, eliminate sexual violence or resolve every difficult case, but it would establish a consistent standard. The legislation would not tell a jury whom to believe, but it would give jurors a common legal standard by which to evaluate the evidence before them.
New York can continue pretending that consent is so obvious that it needs no definition, but we have decades of evidence showing that it is anything but. Until the law defines consent, rape in New York will remain, in part, a matter of opinion.
Ashley Staggers has worked in federal and state policy, advancing reforms related to trafficking and sexual exploitation through national organizations.
