The crux of the problem is that the New York standard for proving rape in the absence of forcible compulsion or inability to consent depends on a jury evaluation of the clarity with which the survivor can be proven to have withdrawn consent to sexual activity. Sex that occurs under the circumstances of “lack of consent” as defined in NYPL 130.05, where the victim has capacity to consent but clearly expresses a lack of consent to the perpetrator, constitutes Rape in the 3rd Degree, a Class E Felony punishable by up to four years in prison. This is a straightforward legislative expression of the traditional anti-date rape slogan “No means no.”
As such, it is completely insufficient in today’s culture. This statute is perfectly representative of the ways in which penal law embodies and reinforces rape culture, in that the burden to create, and subsequently prove the existence of, the distinction between consensual sex and rape falls on the wrong party. There is no question that a sexual aggressor erring with regards to whether or not consent to sexual activity exists has devastating consequences for the object of such aggression. With stakes this high, avoiding this error justifies reallocating the obligations of creating and establishing that distinction to the sexual aggressor, and subsequently the defendant. The cycle of lawmakers enacting into statute the normalization of sexual violence into which they spent their life being enculturated must be broken in order to eradicate that sexual violence, and one step towards breaking that cycle is the propagation and legislation of the idea of affirmative consent.