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Articles 1 - 7 of 7
Full-Text Articles in Law
Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, And Other Difficulties Of “Affirmative Consent” In The Ali’S Draft Sexual Assault Provisions, Kevin Cole
San Diego Law Review
The American Law Institute’s draft amendments to the Model Penal Code’s sexual assault provisions address the problem of unwanted sex through the use of proxy crimes. The draft forbids sex undertaken in the absence of certain objective indicia of willingness, or in the presence of certain objective indicia of unwillingness, even though the serious harm of sex with an unwilling partner does not always result from those situations. Proxy crimes are sometimes justified, as is the draft’s requirement that an express “no” be respected in the absence of subsequent words or actions by a partner rescinding the “no.” But proxy …
Like Snow To The Eskimos And Trump To The Republican Party: The Ali's Many Words For, And Shifting Pronouncements About, "Affirmative Consent", Kevin Cole
Faculty Scholarship
This short piece examines changes from prior drafts in the most recent draft (Preliminary Draft No. 6) of the American Law Institute's project on sexual assault law.
For The Title Ix Civil Rights Movement: Congratulations And Cautions, Nancy Chi Cantalupo
For The Title Ix Civil Rights Movement: Congratulations And Cautions, Nancy Chi Cantalupo
Faculty Scholarship
No abstract provided.
Not Affirmative Consent, Aya Gruber
Consent Confusion, Aya Gruber
Consent Confusion, Aya Gruber
Publications
The slogans are ubiquitous: “Only ‘Yes’ Means ‘Yes’”; “Got Consent?”; “Consent is Hot, Assault is Not!” Clear consent is the rule, but the meaning of sexual consent is far from clear. The current state of confusion is evident in the numerous competing views about what constitutes mental agreement (grudging acceptance or eager desire?) and what comprises performative consent (passive acquiescence or an enthusiastic “yes”?). This paper seeks to clear up the consent confusion. It charts the contours of the sexual consent framework, categorizes different definitions of affirmative consent, and critically describes arguments for and against affirmative consent. Today’s widespread uncertainty …
Rape Law Revisited, Aya Gruber
Rape Law Revisited, Aya Gruber
Publications
This essay introduces the Ohio State Journal of Criminal Law Symposium, “Rape Law Revisited” (Vol. 13(2)). The Symposium features articles by Deborah Tuerkheimer, Kimberly Ferzan, David Bryden and Erica Madore, Bennett Capers, and Erin Collins. The symposium provides fresh perspectives on the issues surrounding sexual assault law and policy in today’s environment. The introduction notes that the current rape reform redux is not just a rehashing of old arguments, but boasts many new features. Today’s rape activism occurs in a moment when feminist ideas about coerced sex no longer exist at the margins — they govern and enjoy cultural acceptance, …
Consent, Culpability, And The Law Of Rape, Kimberly Kessler Ferzan
Consent, Culpability, And The Law Of Rape, Kimberly Kessler Ferzan
All Faculty Scholarship
This Article explores the relationship between consent and culpability. The goal is to present a thorough exposition of the tradeoffs at play when the law adopts different conceptions of consent. After describing the relationship between culpability, wrongdoing, permissibility, and consent, I argue that the best conception of consent—one that reflects what consent really is—is the conception of willed acquiescence. I then contend that to the extent that affirmative consent standards are aimed at protecting defendants, this can be better achieved through mens rea provisions. I then turn to the current victim-protecting impetus for affirmative expression standards, specifically, requirements that the …