Consent and Connecticut law: Ensuring criminal justice keeps pace with today’s culture
Our cultural understanding of sexual violence has grown exponentially in the last decade. College students brought national attention to the epidemic rates of sexual violence on campuses by using Title IX to address their school’s poor response. And the #MeToo movement brought discussions of sexual violence into the mainstream, making “victim blaming” a part of our common lexicon. Time and again we have witnessed how power dynamics allow men to perpetuate sexual violence, causing women to remain silent.
As we look to the future, we must ensure that our cultural understanding of sexual violence is reflected in our laws. U.S. Education Secretary Betsy Devos and the Trump Administration, with the release of their new Title IX regulations earlier this year, are attempting to reverse much of the progress that has been made on college campuses to address sexual violence. It is imperative that those of us in leadership positions continue to move anti-sexual violence work forward.
In 2016, Connecticut led the way nationally by enacting Public Act 106, An Act Concerning Affirmative Consent. This legislation opened a much-needed dialogue about sexual consent and how the absence of resistance doesn’t imply consent. There was a lot of misunderstanding at the time over whether an affirmative consent standard on college campuses would automatically imply guilt on the part of the accused. It did not. Affirmative consent challenged old notions of sexual violence which previously placed the burden on the victim to prove resistance rather than questioning both parties on their agreement to engage in sexual activity.
The affirmative consent standard addresses situations that lack resistance but where consent was not given. Take for example the young woman so intoxicated she is unable to resist, or the young man scared to have his sexual identity revealed. In both instances, whether physically or emotionally, these individuals are unable to resist, but they also haven’t given their consent. Similar episodes of sexual violence take place off college campuses as well.
Yet for many in our state and country, criminal law excludes their experience of sexual violence. Recognizing this, the American Law Institute (ALI) has sought to revise the model penal code (which was first published in 1962) to change its outdated provisions regarding sexual assault. Started in 2012, the ALI is re-examining Article 213 of the Model Penal Code (the article governing sexual assault) to center liability on the essence of the offense, which is consent.
After nearly a decade’s worth of work, the ALI is scheduled to release their revisions to the Model Penal Code including, Sexual Assault in the Absence of Consent, early next year. On October 22, Connecticut lawmakers, advocates and sexual assault survivors will be joined via Zoom by Erin Murphy, the Associate Reporter to the ALI Project on Sexual Assault and Related Offenses, to discuss her work and its implications for Connecticut law.
As a national leader on policies to address and prevent sexual violence, Connecticut stands poised to take the lead on this issue once again. When a victim agrees to pursue criminal charges in Connecticut, antiquated notions of sexual violence should not prevent them from receiving justice.
Our state has an opportunity to continue the momentum that has been gained over the last decade, and Connecticut should use the work of the ALI to ensure our laws keep pace with today’s culture.
State Rep. Jillian Gilchrest represents West Hartford’s 18th Assembly District.
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