January 14, 2016

PENN LAWPROF PAUL ROBINSON: The Legal Limits of ‘Yes Means Yes.’

The public discussion about affirmative consent seems to have mixed two quite different issues. Most criminal-law theorists would point out that there is a crucial difference between what they would call in legal jargon an ex ante rule of conduct — that is, telling people beforehand what the law requires of them — and an ex post principle of adjudication — setting the rules by which a violation of the rules of conduct is to be judged.

I think there is little dispute about the value of “yes means yes” as a rule of personal conduct understood beforehand by both parties; the only dispute is whether it is an appropriate standard to determine liability and punishment if those rules are violated. . . .

Modern American criminal law has almost always chosen to require not only proof of the harm — causing another’s death, or having intercourse when the partner is not in fact affirmatively agreeing — but also to require that there was some minimum level of culpability or blameworthiness in the defendant.

Indeed, it is this aspect of criminal law — its commitment to imposing liability only when there is sufficient personal blameworthiness — that has given it the moral prescriptive power that it has. The criminal law that punishes without regard to blame loses moral credibility with the community it governs and is discredited and ignored. A criminal law that earns moral credibility with the community is one that has the power to persuade people to internalize its norms.

Ironically, it is the reformers seeking to change existing norms — such as the norms of sexual consent on college campuses — who would most benefit from a criminal law that has earned moral credibility. It is their reform efforts that are most injured when the law’s credibility is damaged by using affirmative consent as a standard when determining guilt.

The weakness in this analysis is the assumption that the “reformers” care about justice.

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