Consenting to Change: The New Sexual Assault Provisions of the Model Penal Code

by Tori DeLaney, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

Common law has been skeptical and dismissive of consent as a defense in sexual assault cases, particularly when consensual kink¹ (hereinafter “BDSM”²) relationships are involved.³

This skepticism is supported by “rape culture”⁴ and misunderstandings around BDSM “play” styles and bodily harm.⁵ Courts allow consent exceptions for body modification and sports but have not generally applied these exceptions to sexual assault, particularly when BDSM is involved.⁶ Since consent has not been recognized as a permissible defense, BDSM practitioners have tried to defend against sexual assault claims using a Lawrence v. Texas framework.⁷ In Lawrence, the Supreme Court held it unconstitutional for states to discriminate against certain kinds of intercourse because such restrictions had “far-reaching consequences touching upon the most private human conduct, sexual behavior.”⁸ These arguments in the BDSM context have been rejected by courts.⁹ Recently, the American Law Institute (“ALI”) has published new drafts of the Model Penal Code (“MPC”) section surrounding Sexual Assault and Related Offenses.¹⁰ Two significant changes include a consent definition and an affirmative defense to sexual assault claims involving “explicit prior permission” – a form of consent that is verbally¹¹ explicit and would acknowledge the reality that some people like a little pain with their pleasure.¹²

This article explores how the new consent definition, and “explicit prior permission” defense could better protect sexual assault survivors while also de-stigmatizing BDSM relationships.¹³ Part II outlines the history of the MPC, case law around sexual assault and BDSM, and articulates the changes made to the MPC’s sexual assault and related offenses section. Part III discusses the benefits of reframing sexual assault offenses with an emphasis towards consent and “explicit prior permission” rather than towards physical force. Part IV concludes that consent should be included in criminal law provisions related to sexual assault while noting potential barriers to adoption.

II. Background

The first version of the MPC, established in 1962, was considered progressive for its time. ¹⁴ Despite its progressiveness, it framed issues of sexual assault within the context of physical violence and heterosexual relationships.¹⁵ State case law similarly focused on physical violence by centering conversations around “bodily injury”¹⁶ or “serious bodily injury.”¹⁷ The narrow focus on physical harm without exceptions for consensual behavior placed many BDSM relationships in conflict with criminal assault laws.¹⁸ ALI’s proposed changes to the MPC reframe sexual assault within the context of consent and sexual autonomy rather than just physical force, which will empower sexual assault survivors and broaden criminal law’s understanding of valid sexual experiences like BDSM.¹⁹

A. Courts and the Current MPC

Scholars and BDSM advocates have found that courts distinguish BDSM cases and other sexual assault cases by omitting consent standards.²⁰ Advocates have argued that BDSM cases could have been defensible under the reasoning of Lawrence v. Texas because sexual BDSM involves personal, sexual-behavioral choices and intimate relationship building.²¹ Lawrence found a Texas law unconstitutional because the State only claimed an interest in preserving morality, which the Court did not find was a compelling enough interest to undermine individuals’ protection under the Equal Protection Clause.²² However, courts have distinguished BDSM cases by recognizing a state interest in BDSM related assault cases that, unlike Lawrence, stem from more than a morality objection.²³ Courts have found that BDSM is a form of violence, despite its consensual nature, and that states have an interest in preventing such violence.²⁴

Courts have also refused to consider existing consent exceptions when examining BDSM cases because of the difference between BDSM and “acceptable” uses of force.²⁵ Consent is currently a defense to bodily harm if the harm is not serious, if the injuries are related to athletic contests and are foreseeable, or if the consent establishes a justification under Article 3 of the MPC.²⁶ Additionally, the MPC downgrades simple assault from a misdemeanor to a petty misdemeanor if a fight or scuffle involved mutual consent.²⁷ However, courts have excluded BDSM from these consent exceptions, perhaps because they are less socially acceptable.²⁸

B. The New MPC

The sixth tentative draft of the amended MPC improves sexual assault standards by recognizing the importance of consent.²⁹ Consent can change “a kidnapping into a Sunday drive, a battery into a football tackle, a theft into a gift, and a trespass into a dinner party.”³⁰ Consent is the “willingness to engage in specific [sexual] acts” through explicit or inferred assent that is revokable or withdrawable “any time before or during” sexual activity.³¹ The MPC’s updated guidelines create a specific definition where physical and verbal resistance are not required to show a lack of consent.³² The definition of consent is further nuanced under this tentative draft because it recognizes alternative sexual situations where withdrawal of consent occurs through safewords³³ or gestures rather than traditional verbal protest.³⁴ This definition allows individuals to have the sexual experiences they want that involve resistance, restraint, or force while also retaining the individuals’ right to sexual boundaries (e.g., the ability to withdraw consent).³⁵ Individuals can still violate the current MPC definition and defense by not obtaining explicit permission before sex or not stopping the sexual or other restrictive activity upon hearing or seeing the safeword/gesture.³⁶ The tentative draft also limits consent by invalidating consent if it was received from an intoxicated person, a minor, through coercion, or creates a situation where an individual risks serious bodily harm³⁷ or is unable to withdraw consent.³⁸ Despite the definition and defense’s limits, some scholars argue the explicit prior permission defense should not be incorporated because it is contrary to a societal consensus.³⁹

III. Discussion

The updated MPC sexual assault provisions could provide greater protection to survivors of assault and practitioners of BDSM by centering clearer consent provisions.⁴⁰ The change would help diminish social stigmas that follow both BDSM and assault survivors and would particularly uplift individuals who identify as both BDSM practitioners and assault survivors.⁴¹

State should adopt the new sexual assault provisions because they follow the societal realization that consent is a key element of sexual relationships and provide clearer guidelines for examining consent.⁴² The updated MPC builds on the growing awareness that sexual assault is a serious criminal offense “even in the absence of force or other coercion.”⁴³ It also recognizes that physical force is not a core element in determining assault.⁴⁴ States that adopt this provision will likely broaden the number of survivors the statute can serve by including consent and deemphasizing the necessity of physical or verbal resistance.⁴⁵

Additionally, states that adopt the new consent and explicit prior permission defense would advance American sexual culture towards affirmative consent.⁴⁶ Affirmative consent demonstrates sexual participants have given “clear permission” to “willingly [knowingly and voluntarily] engage in the sexual activity.”⁴⁷ BDSM practitioners historically and continually emphasize the importance of consent in their practice.⁴⁸ Practitioners rely on negotiation and frequently include a safeword or safe-signal in their play.⁴⁹ If an individual violates these community guidelines, they could be excluded from future participation in the BDSM community.⁵⁰ By emphasizing communication and consent, the new MPC aligns with the values of the BDSM community while bolstering the importance of communication in mainstream sexual relationships, which could change the way we discuss sexual assault cases.⁵¹ Consent creates a bright(er)-line test than physical or verbal resistance, which could be made even brighter through case law.⁵² States that adopt the new MPC will not only catch-up to the current discourse around sexual assault, but also help to dismantle our current “rape culture.”⁵³

Explicit prior permission as a defense may go against existing case law, but it better reflects Americans’ “societal consensus” on BDSM and consent while also supporting the foundational values of the MPC.⁵⁴ American society has increasingly embraced BDSM culture.⁵⁵ For example, the American Psychiatric Association depathologized BDSM in 2013 while references to BDSM continue to rise in popular culture.⁵⁶ Additionally, more Americans now report including a little BDSM into their bedroom activities, although they may not identify as part of the BDSM community.⁵⁷ The primary drafter of the original MPC, Herbert Wechsler, said “when critique is valid, law will gain from recognition of its merit. Where it reflects misunderstanding or inadequate analysis of the intrinsic social problem, a reasoned statement of the points involved may serve to clear the air.”⁵⁸ He further warned, “A society [like ours that believes] in law cannot regard with unconcern the fact that prosecuting agencies can exercise so large an influence on dispositions that involve the penal sanction without reference to any norms but those that they may create for themselves.”⁵⁹ Wechsler’s comments demonstrate that law should grow or adapt its interpretation through an analysis of social problems.⁶⁰ Sexual assault is a social problem that continues to plague the legal and social system.⁶¹ The new version of the MPC strives to better protect people from sexual assault while acknowledging the variety of sexual experiences and the growing importance of consent in all sexual encounters.⁶² Law should be a force of norm creation as much as it is a mechanism for reinforcing norms. The MPC was not intended to be a model based on state law, but a forward-looking model for states to follow.⁶³ The new MPC language follows the example of Wechsler and his team by creating a forward-looking model for states to use to better address the nuances within sexual assault.⁶⁴

IV. Conclusion

Criminal laws would benefit from the proposed language around consent and explicit prior permission proposed in the newest draft of the MPC.⁶⁵ A consent definition and the use of an explicit prior permission defense would not only protect more survivors by destigmatizing certain sexual encounters, it would also protect more survivors by centering the obtention of affirmative consent.⁶⁶ Furthermore, the draft MPC language aligns the MPC with society’s growing consensus that BDSM is an appropriate addition to sexual relationships and that consent is an increasingly important element in sexual encounters.⁶⁷ While the new MPC language may not solve credibility debates or bias in sexual assault cases, it could significantly improve those issues.⁶⁸ The new draft MPC language could shift society towards a more nuanced legal and societal understanding of how sexual relationships manifest, how to prevent sexual assault, and how to examine sexual assault when it does occur.⁶⁹

Cover Photo by gamal_inphotos on Flickr and licensed under CC BY-NC 2.0.

Tori DeLaney

Tori DeLaney focused their undergraduate research on how "acceptable" gender identities fluctuated in novels and, by extension, society over time. Tori later worked as a Family Law and Guardianship paralegal where they observed the impact of gender on the law and vice versa. Tori hopes Law Review can be an avenue to examine the obvious and subtle ways gender and law mingle.

References

1
Kink is an umbrella term used to refer to “behavior that generates a certain power dynamic [or] experiencing attraction towards acts with certain power dynamic.” Ritch C. Savin-Williams, What is Kink?, Psych. Today (Jan. 22, 2019), https://www.psychologytoday.com/us/blog/sex-sexuality-and-romance/201901/what-is-kink [https://perma.cc/A4K5-GEGT].
2
BDSM, like kink, is often used as an umbrella term to refer to sexual activities and fantasies. BDSM specifically refers to bondage/discipline, domination/submission, and sadism/masochism relationship dynamics. Savin-Williams, supra note 1; Ashley A. Hansen-Brown & Sabrina E. Jefferson, Perceptions of and Stigma Towards BDSM Practitioners, Current Psych. 1, 1 (Apr. 26, 2022), https://link.springer.com/article/10.1007/s12144-022-03112-z [https://perma.cc/5W2B-MSAE].
3
Sarah Stein, Decriminalizing Kink: A Proposal for Explicit Legalization of Sexually Motivated Consensual Harm, Ariz. State Univ. 1, 12-13 (Apr. 15, 2020), https://law.asu.edu/sites/default/files/pdf/Sarah%20Stein%20National%20Writing%20Competition%20Submission.pdf [https://perma.cc/95VY-E7U5]; Vera Bergelson, Lecture, Autonomy, Dignity, and Consent to Harm, 60 Rutgers L. Rev. 723, 726 (2008) [hereinafter Bergelson, Autonomy]; Commonwealth v. Appleby, 380 Mass. 296, 302, 311-12 (1980); State v. Van, 268 Neb. 814, 824-25 (2004) (noting that first and second degree assault could not be consented to by the victim), but see Van, 268 Neb. at 817-18, 836 (noting that consent is a clear defense and that consent exists even without physical or verbal resistance; finding the “no-limits” relationship negotiated by the parties was not consented to because victim’s revocation of consent was ignored by defendant).
4
Christina Pazzanese, How Rape Culture Shapes Whether a Survivor is Believed, Harv. Gazette (Aug. 25, 2020), https://news.harvard.edu/gazette/story/2020/08/how-rape-culture-shapes-whether-a-survivor-is-believed/ [https://perma.cc/R96C-VNBE] (explaining rape culture “is the set of social attitudes about sexual assault that leads to survivors being treated with skepticism and even hostility, while perpetrators are shown empathy).
5
Play refers to the specific kind of kink an individual is interested in and any specific manner the individual likes to engage with those specific kinks. Savin-Williams, supra note 1; Pazzanese, supra note 4; See, SSC, RACK, and Other Safety Philosophies, Kink Curiosity, https://kinkycuriosity.com/ssc-rack/ [https://perma.cc/RU4S-X3GT]; Appleby, 380 Mass. at 302, 304-307 (noting the riding crop used during impact play only caused redness; finding the riding crop could still be classified as a dangerous weapon that could inflict serious bodily harm and that such harm did not need to occur for the classification to be sustained).
6
Vera Bergelson, Consent to Harm, 28 Pace L. Rev. 683, 687-88 (2008) [hereinafter Bergelson, Consent to Harm]; Stein, supra note 3, at 10.
7
Lawrence v. Texas, 539 U.S. 558, 567 (2003); Stein, supra note 3, at 5-9 (outlining cases that argued the applicability of Lawrence and explaining why courts may have refused these arguments); see State v. Van, 268 Neb. 814, 823-27 (2004).
8
Lawrence, 539 U.S. at 567.
9
Stein, supra note 3, at 4-6.
10
Model Penal Code § 213 (Am. L. Inst., Tentative Draft No. 6, 2021).
11
Advocates of this consent defense have suggested “verbal” should be understood to extend to languages like American sign language (ASL) but not to broad gestures like a shrug. Model Penal Code §§ 213.0(2)(e), 213.10 cmt. 2 (Am. L. Inst., Tentative Draft No. 6, 2021); Watts Your Safeword, Consent Could be Changing Legally, at 18:37-19:15 (Dec. 30, 2022) (downloaded using Apple Podcast).
12
Stein, supra note 3, at 2-3; see also Merissa Nathan Gerson, BDSM Versus the DSM, Atlantic (Jan. 13, 2015), https://www.theatlantic.com/health/archive/2015/01/bdsm-versus-the-dsm/384138/ [https://perma.cc/9WUJ-7SZ5].
13
See infra Part III.
14
Model Penal Code, A.L.I., https://www.ali.org/publications/show/model-penal-code/ [https://perma.cc/9RQW-J6DA].
15
Id.
16
Model Penal Code § 210.0(2) (Am. L. Inst., Official Draft 1962); Commonwealth v. Appleby, 380 Mass. 296, 302, 304-307 (1980).
17
Model Penal Code § 210.0(3) (Am. L. Inst., Official Draft 1962); State v. Van, 268 Neb. 814, 823 (2004).
18
Stein, supra note 3, at 8-11; American Law Institute Members Approve Model Penal Code on Sexual Assault, Drafted by Stephen Schulhofer and Erin Murphy, N.Y. Univ. L. News (Aug. 24, 2021) [hereinafter Members Approve Model Penal Code on Sexual Assault], https://www.law.nyu.edu/news/stephen-schulhofer-erin-murphy-model-penal-code-sexual-assault-ali-approval [https://perma.cc/WZP9-CDPQ].
19
Members Approve Model Penal Code on Sexual Assault, supra note 18; see Stein, supra note 3, at 16.
20
Bergelson, Consent to Harm, supra note 6, at 687, 989; History of NCSF, Nat’l Coalition for Sexual Freedom, https://ncsfreedom.org/our-coalition-partners/ [https://perma.cc/CVF9-EUJY]; see also Our Coalition Partners, Nat’l Coal. for Sexual Freedom, https://ncsfreedom.org/our-coalition-partners/ [https://perma.cc/ULC9-7DA5] (demonstrating the variety of community actors who support the consent movement for BDSM practitioners and other people in alterative relationship styles); Cara R. Dunkley & Lori A. Brotto, The Role of Consent in the Context of BDSM, 32 Sexual Abuse 657, 672 (recognizing that BDSM often sits at the fringes of the law).
21
Stein, supra note 3, at 7-8.
22
Lawrence v. Texas, 539 U.S. 558, 582-83 (2003).
23
Lawrence, 539 U.S. at 582; Stein, supra note 3, at 8.
24
Lawrence, 539 U.S. at 582; Stein, supra note 3, at 8.
25
Stein, supra note 3, at 10; Model Penal Code § 2.11 (Am. L. Inst., Official Draft 1962).
26
Article three covers “choice of evils” and use of force in three limited situations. Model Penal Code §§ 2.11(2), 3.02-09 (Am. L. Inst., Official Draft 1962).
27
Model Penal Code § 211.1(1)(c) (Am. L. Inst., Official Draft 1962).
28
Stein, supra note 3, at 9-10.
29
Model Penal Code § 213 (Am. L. Inst., Tentative Draft No. 6, 2021).
30
Bergelson, Autonomy, supra note 3, at 723.
31
Model Penal Code §§ 213.0(2)(e)(iv), 213.10 cmt. 2 (Am. L. Inst., Tentative Draft No. 6, 2021).
32
Model Penal Code § 213.0(2)(e)(ii) (Am. L. Inst., Tentative Draft No. 6, 2021).
33
Safewords in the BDSM context tend to be treated as a singular word. See Stein, supra note 3, at 8; Dunkley & Brotto, supra note 20, at 660-61, 663, 665-66.
34
Consent and safewords/gestures are a staple among BDSM practitioners and if a practitioner does not follow these consent and safety guidelines, they are likely to be ousted from the community, much like a business who does not follow industry standards. Dunkley & Brotto, supra note 20, at 660-61, 663, 665-66 (explaining the use and importance of safewords and consent in the BDSM community; noting the importance of community standards within BDSM and that the community educates about vetting potential partners); Model Penal Code § 213.10(2) (Am. L. Inst., Tentative Draft No. 6, 2021).
35
Model Penal Code § 213.10(2) (Am. L. Inst., Tentative Draft No. 6, 2021).
36
Model Penal Code § 213.10(3) (Am. L. Inst., Tentative Draft No. 6, 2021).
37
Compare Model Penal Code § 213.0(2)(e) (Am. L. Inst., Tentative Draft No. 6, 2021) with Model Penal Code § 210.0(2) (Am. L. Inst., Official Draft 1962).
38
Model Penal Code § 213.10(3)(d) (Am. L. Inst., Tentative Draft No. 6, 2021).
39
George W. Liebmann, Abortive Motion to Strike Proposed Section 213.10 of Model Penal Code, Calvert Inst. Pol’y Rsch. (June 16, 2021), http://www.calvertinstitute.org/?p=1899 [https://perma.cc/R8V7-JDGN].
40
Kimberly Kessler Ferzan, #WeToo, 49 Fla. St. U.L. Rev. 693, 696-698 (2022) (suggesting that skepticism around sexual assault, the so called “she said/he said” dynamic could be minimized by recognizing repeat offenses when analyzing “weak” cases but cautioning that repeat offense requirement could create new evidentiary restrictions for survivors of assault seeking justice).
41
See Stein, supra note 3, at 16.
42
Compare Model Penal Code § 213.0(2)(e) (Am. L. Inst., Tentative Draft No. 6, 2021) with Model Penal Code §§ 210.0(2), 213 (Am. L. Inst., Official Draft 1962).
43
Model Penal Code § 213.0 rpt. n.1 (Am. L. Inst., Tentative Draft No. 6, 2021).
44
Members Approve Model Penal Code on Sexual Assault, supra note 18.
45
Compare Model Penal Code § 213.0(2)(e)(ii) (Am. L. Inst., Tentative Draft No. 6, 2021) with Model Penal Code § 213 (Am. L. Inst., Official Draft 1962); Hansen-Brown & Jefferson, supra note 2, at 5; Dunkley & Brotto, supra note 20, at 666-67 (noting the lack of academic studies of sexual abuse in BDSM and the elements academics and other professionals could use to distinguish BDSM from abuse); see Pazzanese, supra note 4 (explaining that under current sexual assault culture (“rape culture”) non-legal factors often cloud the judgment of an individual’s determining the credibility of each party).
46
Katelyn Ewen, When “Yes” Really Means Yes: Have Great Sex with Affirmative Consent, Gottman Inst., https://www.gottman.com/blog/yes-really-means-yes-great-safe-sex-affirmative-consent/ [https://perma.cc/C24E-JEXK]; Dunkley & Brotto, supra note 20, at 665.
47
Ewen, supra note 46 (quoting the State University of New York).
48
Dunkley & Brotto, supra note 20, at 665; SSC, RACK, and Other Safety Philosophies, supra note 5.
49
Dunkley & Brotto, supra note 20, at 661-65 (explaining the safety measures of BDSM practitioners like negotiations and safewords).
50
Id. at 665-66 (noting the ways the BDSM community self-regulates to help prevent abuse).
51
Pazzanese, supra note 4; Ewen, supra note 46.
52
Compare Model Penal Code § 213.0(2)(e)(ii) (Am. L. Inst., Tentative Draft No. 6, 2021) with Model Penal Code § 213 (Am. L. Inst., Official Draft 1962); see Pazzanese, supra note 4 (noting that researchers found consent to be one of several factors that informed individuals’ biases when contemplating a rape case).
53
See Pazzanese, supra note 4.
54
See Liebmann, supra note 39 (stating that the explicit prior permission statement is contrary to societal consensus and notes how the measure runs contrary to existing case law); Ewen, supra note 46; Dunkley & Brotto, supra note 20, at 659-60.
55
See Stein, supra note 3, at 2-3 n.11 and accompanying text; Dunkley & Brotto, supra note 20, at 659-60.
56
See Stein, supra note 3, at 2-3 n.11 and accompanying text; Dunkley & Brotto, supra note 20, at 659-60 (demonstrating the statistical rise in social interest in BDSM); How to Build a Sex Room, Netflix (released July 8, 2022).
57
See Stein, supra note 3, at 2-3; Dunkley & Brotto, supra note 20, at 659-60.
58
Herbert Wechsler, The Challenge of a Model Penal Code, 65 Harv. L. Rev. 1097, 1103-04 (1951), https://archive.org/details/WechslerMPC-Challenge/page/n5/mode/2up [https://perma.cc/2JRZ-NHCS].
59
Wechsler, supra note 58, at 1102; see Paul H. Robinson & Markus D. Dubber, The American Model Penal Code: A Brief Overview, 10 New Crim. L. Rev. 319, 341 (2007) (noting that the code is “showing its age”); Sanford H. Kadish, Codifiers of Criminal Law: Wechsler’s Predecessors, 78 Colum. L. Rev. 1098, 1139 (1978).
60
Wechsler, supra note 58, at 1103-05; Kadish, supra note 59, at 1139.
61
See Stein, supra note 3, at 2; Ferzan, supra note 40, at 720-21; Pazzanese, supra note 4.
62
See Ewen, supra note 46; Dunkley & Brotto, supra note 20, at 659-60, 665; SSC, RACK, and Other Safety Philosophies, supra note 5; Stein, supra note 3, at 2-3.
63
Kadish, supra note 59, at 1139; Wechsler, supra note 58, at 1104-05 (stating “[t]he need for fresh appraisal and constructive thought [around penal law]” exists in the three main inquires made while creating the MPC).
64
See Kadish, supra note 59, at 1139; Wechsler, supra note 58, at 1102-04.
65
See Stein, supra note 3, at 2; Ferzan, supra note 40, at 720-21.
66
See Ewen, supra note 46; Dunkley & Brotto, supra note 20, at 659-60, 665; SSC, RACK, and Other Safety Philosophies, supra note 5.
67
See Ewen, supra note 46; Dunkley & Brotto, supra note 20, at 659-60, 665; SSC, RACK, and Other Safety Philosophies, supra note 5; Stein, supra note 3, at 2-3; see supra Part III.
68
See supra Part III.
69
See supra Part III.