Consent & Connecticut Law
Culture change and public policy go hand in hand. Our cultural understanding of sexual assault has grown exponentially in light of the #MeToo movement, but Connecticut’s laws have not kept pace. Survivors of sexual assault who seek criminal justice should not be denied because of antiquated laws based on resistance, not consent.
State Representative Jillian Gilchrest and the Connecticut Alliance to End Sexual Violence welcome Erin Murphy to Connecticut for a Discussion on Consent & Connecticut Law.
[00:00:00.250] – Beth Hamilton
Why don’t we go ahead and get started?
[00:00:01.650] – Beth Hamilton
Certainly as folks join us, we have some folks at the alliance who are monitoring and who are doing a great job of letting everybody in and getting us all situated today. I’m delighted to welcome you all to today’s conversation consent and Connecticut Law. My name is Beth Hamilton and I am the executive director of the Connecticut Alliance to End Sexual Violence. I’m joined this afternoon, as you can see, by Representative Jillian Gilcrest and Erin Murphy from the American Law Institute. Before before I get started, I just want to do a couple of housekeeping pieces. I want to let you know that we have two alliance team members who are monitoring the chat. So we encourage you to put all of your questions there. We’ve set aside some time at the end to answer those questions so please feel very free to ask away. Over my eleven years at the Alliance, I’ve seen firsthand the ways that our culture has shifted in its understanding of what sexual violence is and its lasting impacts on survivors. However, I’m reminded pretty much every day how much more work we have to do. While the MeToo movement created space for national dialogues about sexual violence and sexual harassment many of those conversations have shifted over the past four years and there have been systematic attempts to erode the rights of survivors nationwide.
[00:01:03.960] – Beth Hamilton
Today’s conversation will provide an opportunity to delve into our need to update our penal codes to reflect our current understanding of sexual violence and consent. The alliance led policy efforts in 2016 to codify affirmative consent as the appropriate standard on our college and university campuses. And it’s time to turn our attention to Connecticut’s criminal statutes. Although we’re in the land of steady habits here in Connecticut, we’ve always been ahead of the curve excuse me in our response to sexual violence. And we’re fortunate to have Aaron’s expertise helping guide us in our exploration of how we can take another important step forward. At this point, I’d like to turn it over to Representative Gilcrest to introduce Erin to you all. Jillian and I actually worked together when she was the Alliance’s policy director many years ago and has remained a fervent ally to the alliance and survivors of sexual violence and sexual harassment. Jillian advocates for survivors’ rights and is always ready to use her political capital to engage in meaningful conversations. We’re so fortunate to have her as a friend and a champion in our state. So, Jillian, take it away.
[00:02:02.020] – Representative Jillian Gilcrest
Thank you so much, Beth. And I want to thank Beth Hamilton and Lucy Nolan and Elise Della Cruz for your help with setting up this event today and to the rest of the alliance to End Sexual Violence team just for your tremendous work in our state on behalf of victims of sexual violence and your continued advocacy over the years. I look forward to our partnership on this work as well. So today is a day to learn it’s, to gather information, to ask questions, and to have an open mind. We know there’s a problem. Many victims experiences with sexual assault are not recognized by our criminal justice system. Culture change and public policy go hand in hand as our cultural understanding of sexual assault has grown exponentially in light of the MeToo movement, connecticut’s laws have not kept pace. Survivors of sexual assault who seek criminal justice should not be denied because of antiquated laws based on resistance, not consent. Because of the tireless efforts of survivors, students, and advocates, college campuses have led the way in raising the public’s understanding of consent. But as the US. Education Secretary, Betsy DeVos, and the Trump administration, with the release of their new Title IX regulations earlier this year, attempt 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 antisexual violence work forward.
[00:03:31.090] – Representative Jillian Gilcrest
As Beth mentioned 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 that time over whether an affirmative consent standard on college campuses would automatically imply guilt on the part of the accused. It did not. I anticipate the same level of misinformation and pushback as we embark on this work to have Connecticut’s Criminal Law Center liability on the essence of the offense, which is consent. That is why I feel it is important to begin our work with an opportunity to learn from someone who has spent nearly a decade engaging in this discussion. Affirmative consent, or what we might hear today refer to as contextual consent, challenges 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. Today we are joined by Aaron Murphy, the associate reporter to the American Law Institute project on sexual assault and related offenses. The ali has been reexamining Article 213 of the Model Penal Code, the article that governs sexual assault since 2012.
[00:04:54.110] – Representative Jillian Gilcrest
Ms. Murphy is a professor of law at NYU, where her research focuses on technology and forensic evidence in the criminal justice system. She is a nationally recognized expert in forensic DNA typing, and her work has been cited multiple times by the Supreme Court. A proud recipient of the 2012 Podil Distinguished Teaching Award, Ms. Murphy teaches criminal law and procedure evidence, forensic evidence evidence sorry forensic evidence and professional responsibility in the criminal context. Among other courses. She joined the NYU faculty after five years at UC Berkeley School of Law. Prior to that, Ms. Murphy spent five years as an attorney with a public defender service for the District of Columbia. She received her BA in Comparative Literature from Dartmouth College in 1995 and her JD from Harvard Law School in 1999. Both magna cum laude, she clerked for Judge Merrick Garland on the US. Court of Appeals for the DC. Circuit. I want to thank you, Ms. Murphy, for your tireless work for nearly a decade and for joining us here today. And with that, I’d love to turn it over to you. Thank you.
[00:06:01.810] – Erin Murphy
Thank you so much, Representative, for inviting me and all of you for attending. I know this would have been a much nicer thing to be able to do in person, but in our new zoom reality, I’m really glad that you nonetheless made time to be here in light of our zoom reality. I’ve prepared remarks, and I have some slides, which hopefully everyone can see. Unfortunately, I can’t run them as a slideshow or I lose my whole desktop, but hopefully someone can throw in the chat if they’re not coming across clearly in a kind of shrunken but still present form. But I would like to make sure there’s plenty of time for questions, because I’ve found that this is an area that there’s a lot of subtlety and nuance. And so what I’d like to do is sort of give you some information about our project and about what we learned and why we came to the decisions that we came to. But make sure to leave ample time for your questions and a dialogue, really, about these really difficult issues. So first, let me just tell you a little bit about the ali for those of you who might be unfamiliar with the organization or what it’s doing.
[00:07:05.850] – Erin Murphy
So the American Law Institute was founded in 1923, and it’s a collection of illegal elites. Essentially, it’s judges, justices, legal practitioners, lawyers, academics like myself who are elected to the Institute. It’s a selective organization, and the idea is essentially to have a kind of intellectual think tank about the law when it was initially founded. You have to think way back in 1923, there’s no computers, there’s no West Law, the database of criminal and civil cases, or all cases and statutes. So you have to think about a country in which if you want to know the law of California and you live in Connecticut, you are going to have a really hard time figuring it out. You can’t just click three things on a computer to discern what the law is. In fact, if you live in Connecticut, it might be hard to figure out the law of Connecticut, because again, you can’t just go onto a computer database and do a search. You’re going to have to have physical books and pull them off the shelf, and they’ll have to be updated and so forth. So the American Law Institute is founded to in some ways rationalize the law and to have the sort of experts in the law thinking about it and putting forth restatements of the law that tell you what the law is.
[00:08:17.230] – Erin Murphy
Around the country. So as a judge, you could kind of have some guidance as you’re making decisions. When it came to the criminal law, as they went to try and learn to restate it, they actually found a defied restatement. It was so scattered, so irrational, that they instead did what they called a model penal code. Which is to say they looked at the criminal law and criminal codes across the country, but they decided this is just a template for how to think about these issues. We’re not going to try and summarize the state of the law. Instead, we’re going to put forward a model code that looks forward and says this is what a penal law should be. And in 1962, that code was enacted. It was very forward looking, even in the sexual assault offenses at its time. But of course, a lot has changed since 1962. And so now in 2020, really, but also 2012, when the project began, they realized that this particular portion of the model penal code had kind of become outdated. Now, you might be thinking right now, why do I even care about a model code at all?
[00:09:16.180] – Erin Murphy
Or why could this be helpful? And one important thing to know is that many states in 1962 or the 1960s, when the model penal code is enacted or is promulgated by the Ali, are also in the process of codifying their own penal codes. They themselves, legislatures, are enacting criminal laws in their jurisdictions that are comprehensive codes. And so the model penal code is incredibly influential and ends up being kind of copied wholesale in a lot of jurisdictions. So even though we refer to it as a model code, it is the actual law in many states across the country. And so part of what this project intends to do is sort of replicate this idea that we can canvas the law, we can look broadly, and we can also look forward and imagine a model code for the kind of issues that we’re interested in. Now, the project is a wholesale reimagining of the sexual offenses. We’re not just dealing with consent, we’re dealing with what would be a comprehensive code for sexual intercourse or penetration offenses as well as sexual contact offenses. We deal with registration and some evidence components. So it’s a much bigger project than just the consent piece.
[00:10:29.290] – Erin Murphy
But of course, the consent piece is in many ways the foundational core of the project and has been in some respects the most challenging part of the project. Before I tell you all about that part, let me just say one more thing, which is where we are in our process. As you heard, we started in 2012, which was supposed to be a kind of two year project. It is now, of course, 2020. I joke because I was pregnant when we started and I now have a third grader. So a lot has changed. But the process essentially entails myself and the reporter Steve Schulhoffer writing drafts of the code, informed by a committee of kind of experts in the field, not just members of the Ali, but experts across the country, whether they’re lawyers that practice in criminal courts or advocacy organizations or other people invested in this work. We draft a code, and then we take it to a kind of senate like body, a sort of selection of people on the Ali known as the ali council. They approve what we have drafted, make modifications. They send it then to the membership, which is the whole body, and the membership votes it up or down.
[00:11:39.440] – Erin Murphy
And based on the membership’s final vote, having had the approval of the council and the approval of the membership, that becomes the official Ali model code. So as of now, we’re still in this process. The code has been more or less completely drafted, but we’re still in this process of going through the approval cycles. But the first provision which was approved was voted on by the membership in 2016. And it’s the definition of consent that you see on your screens now. And you can see a couple of things about this definition, and we’ll talk a lot more about it. But one thing about the definition is that it is a consent concept that we refer to as contextual consent. And I’ll differentiate that a little bit later from a traditional kind of idea of affirmative consent as well as traditional ideas of non consent or resistance. And you’ll also see that we are actually pretty detailed in our definition of consent. One thing that we found in looking at the law is that a striking number of jurisdictions, connecticut included, don’t define consent for sexual assault purposes in their codes. And even those that do define it in their codes do so sometimes in a very threadbeare way.
[00:12:56.200] – Erin Murphy
So our definition is already far more detailed and specific than you’ll find in any code. I also would point out that it’s so detailed and specific that we actually give examples of language that could be used to establish non consent or establish revocation of previously given consent. So, again, it’s a little bit atypical in the clarity, but some of the decision making that went into this level of specificity was the value of the clarity of the law in plain spoken and clear terms expressing what consent should be and what the absence of consent might look like. And so there was a kind of deliberate choice, not to be too kind of rarefied or expert in defining it, but really to put it into very plain terms like, no, stop, don’t establishes the lack of consent. Okay, so let’s back up a little bit from this final product to how we get there. And for some of you, I imagine this is very familiar because you’re steeped in this field already. But for those of you for whom it is less familiar, hopefully it helps set the stage for where we are. Historically in the law of the United States, there was a very high standard to prove a sexual assault was a criminal offense.
[00:14:17.740] – Erin Murphy
And traditionally the standards were kind of three different concepts were enmeshed together force, the use of physical force, resistance, which is essentially the victim fighting back, and non consent, which was not really its own freestanding idea, as much as something you could infer from the presence of force and resistance. And when I say force, I mean very high levels of force. So I’m talking about the kind of most severe forms of physical force, like someone putting a weapon, pointing a gun at someone or physically harming them in a very serious way. A beating or a stabbing or choking type of physical force. And anything short of that kind of force was not legally cognizable as force. So something like pulling off someone’s clothes was not cognizable as force. The law didn’t view that as an exercise of force or grabbing someone’s arm or pushing someone onto a bed or scooping someone off their feet and carrying them somewhere. Those were all not considered to be force because force was something that involved high levels of violence that was heavily threatening. Now, if the violence was so severe that essentially a reasonable person would be too scared to resist, then you could still find a sexual assault occurred.
[00:15:50.200] – Erin Murphy
So the classic example, there would be someone who puts a gun to someone’s head and then the person acquiesces and the sexual intercourse occurs. And then a rape can be found because the force was so high and severe that resistance was not required. But otherwise in the law, even if there was some evidence of force, force alone could not prove sexual assault. You also had to prove resistance. And the law had various standards for what resistance could be. So sometimes a common phrase in the traditional sort of common law was utmost resistance. A victim has to resist to the utmost and the idea there is they are giving everything they have to prevent the sexual assault. And you see in cases language like a proud woman is always going to fight with every fiber of her body to stop this kind of sexual intrusion. And therefore the absence of that kind of evidence of resistance suggests that it wasn’t really a sexual assault. Because even if there were force, if someone doesn’t fight back hard enough, it was sort of force irrelevant to securing sexual submission. You also see relaxation of this very demanding resistance standard over time.
[00:17:10.360] – Erin Murphy
So especially in reaction to kind of some of the feminist movements in the jurisdictions start to somewhat weaken the resistance standard. So instead of being say to the utmost, it could be earnest resistance. And so this is still a requirement that a person fight back as it were. But it’s not one that says it has to be like a do or die fight back. This is instead some physical idea of physically resisting. We want to see some evidence of pushing someone away or kicking or scratching. But it doesn’t have to be the case that the victim is kind of fighting tooth and nail until they’re fully overcome. Eventually, resistance requirements become less and less common, or a significant number of jurisdictions eliminate resistance, but even when they eliminate resistance, they still often retain that force standard. And so the way in which we understand kind of the encounter is informed by an idea that some notion of pressure, force, et cetera, is in play to turn it into a sexual assault as opposed to a legal sexual encounter. Now, let me think. Well, why don’t we go so the next thing I want to say, having kind of set the stage for the historical evolution of this standard, is to think about consent as we find it in the law today.
[00:18:47.140] – Erin Murphy
Now, this is dated from July 2018, which was the last time we did a really comprehensive deep dive. And so there was a couple of things that have changed, but I think this gives you a pretty good picture of the state of the law around the country on the question of consent and consent offenses, which is something I’ll get into in a minute. So as you can see from this little short summary, there are about 36 jurisdictions that punish an actor who engages in sexual conduct in the absence of consent without any additional proof of force, as we just talked about resistance or expressed unwillingness of any kind. So in other words, there’s 36 jurisdictions that have some form of liability for a sexual intrusion on the basis of an absence of consent, where consent is not pivoting off of an idea of the use of force or resistance or an expression of unwillingness. Of those jurisdictions, though, twelve of them don’t define consent at all. So again, I gave you the example earlier that a lot of places, surprisingly, do not have a definition of consent, even though they have statutes that say sex without consent is a crime.
[00:20:04.190] – Erin Murphy
If you went to go and look up what’s consent, you don’t find an answer in the legislative materials. It’s also true that those jurisdictions don’t have definitions in case law. So we’ll talk about Connecticut in just a minute. But there are places where the statute itself, the thing enacted by the legislature, doesn’t have a definition of consent. But a court comes along later and says, well, here’s how we’re going to define consent. And so at least you can turn to the court and get an idea of consent. These are places that don’t have either case law or a legislative determination of the meaning of consent. Then you see, there’s 24 jurisdictions that punish in the absence of consent, and they define consent again, either through legislation or through court case law as affirmative consent or contextual consent. And I’ll unpack the difference in just a minute. But some notion of willingness, some idea that somebody wants the sexual encounter to happen is required, otherwise there’s going to be liability. And then lastly, there are three jurisdictions that essentially have a verbal resistance standard. And so you can think about resistance in physical terms, which is how it was traditionally conceived, that it had to be kind of kicking and screaming and biting and scratching.
[00:21:26.750] – Erin Murphy
But you could also imagine resistance as a verbal resistance standard, which would say it’s not a sexual assault unless someone says no. And then if someone says no or verbally resists in some way, we’ll define it as a sexual assault or it’ll be counted as a sexual assault. There are some jurisdictions that have essentially set that as the rule, that if there’s any verbal indication of unwillingness, then that suggests there’s a sexual assault. So where is Connecticut on this picture? And then we can talk more about the different options. Connecticut has a series of laws that address sexual assault, both, as you can see, in these sexual assault top two offenses, first and second degree, conceived of as applying for penetration offenses or intercourse offenses. So you can see that’s one of the elements that must be proved is a penetration of some kind for the top level offense, you also have a contact offense. So these are sexual assaults that are designed to focus more on sexual touchings short of penetration. So we can think of kind of gropes and grabs and so forth falling under this type of conduct. And typically because the legislative standard is imagining a lesser sexual intrusion, because it’s more like a grope and not like penetration, they also tend to be punished less severely.
[00:23:00.650] – Erin Murphy
And consent as a concept in the sort of form that we’re thinking about it, it appears for vulnerable people, like a person with a mental disability perhaps can’t consent as a matter of law or child. But consent in the form of kind of willingness or the absence of willingness appears in the Connecticut law in sexual assault in the fourth degree, where you can see that it’s a crime to essentially engage in sexual contact without another person’s consent, where again, sexual contact is a touching for sexual purposes, not necessarily intercourse. Now, to be clear, although these statutes are targeted at touchings, they apply or could apply to someone who engaged in an active intercourse or penetration because of course that involves touching. So these statutes can and have been applied to sexual encounters that are not just touchings but intercourse, but they are not really written with that framework in mind in terms of the penalty and so forth. Nonetheless, this statute says that it’s a crime to have sexual contact without consent. But of course the legislature in Connecticut didn’t define consent in this context. So we don’t have what does it mean to not have someone’s consent?
[00:24:17.560] – Erin Murphy
What does without such other person’s consent mean? Does that mean that you force them with a weapon? Does it mean you force them with threats or with physical violence short of deadly threats, a slap or a punch or a push? Does without the other person’s consent mean that there was some resistance on their part or maybe that they said no? Is that how we establish that sexual contact is without another person’s consent, that they say no? These are all possible definitions. Of course. Another definition could be you don’t have someone’s consent to sexually touch them or penetrate them unless they’re willing, unless you have some indication of willingness to engage in that context. And that is what essentially the connecticut high court had to decide in this exact statutory context, which is to say they were interpreting this very statute, and they had to say, what do we think consent means in this sexual context statute? And their conclusion was part one. I guess we should just look it up in the dictionary, which is a common thing that judges do when they don’t have a definition in front of them. And so they went and they said, well, what does consent mean in dictionaries?
[00:25:41.690] – Erin Murphy
And one answer is capable, deliberate, voluntary agreement or concurrence stemming from free action and free power. Another is acceptance or approval of what’s planned or done. They go on to note that you can have expressed consent, meaning I can say affirmatively, yes, I want this, or you can speak it out loud in words, or it can be implied or inferred from the circumstances. And you could say implied consent could cover everything from, like an affirmative head nod to gestures or touches or other things that indicate consent. They seem to say here or they don’t get into. One of the things that we’ll talk about is kind of tricky about this standard, which is is consent an interior or an exterior type of thing? Is it objective or subjective? Is it something that a person feels inside or is it something that they manifest externally? So I could feel inside willing, but I could express something that sounds unwilling or vice versa. I could feel inside unwilling, and I could express something that sounds like willing. So it’s not totally clear, although it sounds like from some of the language they use, they mean it to be a physical expression, a physical manifestation.
[00:27:10.640] – Erin Murphy
There’s also other language in the opinion that it’s mostly about the way in which a person projects their intentions or feelings and less about just their internal sensibility. The other thing I want to point out about this standard, which I think you could define as an affirmative consent standard, is that this standard is one that also another question that had to be answered as regards this standard is what is the requirement for the person, the actor, visa vis their understanding of whether there is consent or not? What do we demand that the mental state be of the person who’s engaging in the sexual contact when it comes to their belief about whether there is consent on the other person’s part. Because we could imagine a world in which somebody says something that indicates either willingness or unwillingness, and that itself might establish consent or lack of consent, but the person, the person who’s actually doing the actions has a different understanding of that information. So at a very basic level, this is kind of the framework of a lot of the standards of resistance from the kind of no means no movement, because for a long time the idea was verbal resistance doesn’t count.
[00:28:36.120] – Erin Murphy
No’s don’t count. Saying no, stop, don’t doesn’t count because token resistance is part of the act of seduction. It’s not sincere. It’s meant to be. What kind of nice girls do this is always sort of framed in a very heterosexual frame, what nice girls do to preserve their reputation while engaging in sexual activity. And so a verbal no on its own can’t be taken either to be actually lack of consent or if an actor hears it, they should not have an expectation that that is non consent. And you can see from that example how you could decouple those two inquiries. We could have a law, a standard in law that says saying no is non consent. It establishes the lack of consent. But we still could perhaps have a standard that requires that the actor understand that no is non consent. Or we could have a requirement that they have a certain culpable mental state about there being lack of consent even once it’s established. So this is a picture of various actually, I’m going to jump ahead to this slide just to kind of lay it out, and then we’ll backtrack a minute. This is a picture of then three different things on the table.
[00:29:53.620] – Erin Murphy
When we think about consent, we’re asking, first, what do we just define it to be? What is it in law? Second, we’re asking, is there a law that makes consent, the operable thing for liability, that allows someone to be found guilty of sexual assault on the basis of the absence of consent with no other additives, no force, no resistance, nothing else, just lack of consent. And lastly, what is the mental state that must be proved about that person? Once you show this is what consent is and this is the absence of consent, what also might you have to show about an actor’s mental state about whether consent was or was not present? So what are the ways to think through how to answer this question? Where’s my slide? Oh, I lost my slide. Oh, no. One of the things that we might there it is. One of the ways at a very basic level that we might frame these consent based questions is to ask essentially, do we start from a position where the law says that it’s permissible to sexually penetrate other people or. Sexually touch have contact with other people unless there’s some sign of lack of willingness on that person’s part, unless there’s some indication they don’t want it.
[00:31:16.470] – Erin Murphy
And then we can define about how strict our don’t want it standard is. So we could say unless they indicate they’re unwilling by at least saying no once. If they say no once, then it becomes criminal. Otherwise the law says it’s okay to penetrate. We could say unwilling is more demanding. Well, they have to say no like a lot. We have to have some kind of really high verbal we won’t require kicking and screaming and biting and scratching, but we will require really vigorous verbal resistance. So a single no is probably not enough. You have to really say no. Or we could do what the kind of very traditional legal standards did and said we’re going to say it’s permissible to sexually penetrate someone unless they’re like kicking and screaming and biting and by the way, you’re overcoming that by forcing them somehow. So short of that, sexual encounters are permissible. And you see cases in the historical common law where a version of that is what’s going on and it’s not a crime. So crying isn’t enough of a resistance to constitute unwillingness to satisfy the legal standard or extensive verbal nose, et cetera, or light resistance of a physical kind like pushing someone off you.
[00:32:29.890] – Erin Murphy
I think I gave that example is not enough as a matter of law because the legal standard basically says it’s okay to sexually touch or penetrate someone unless you have some indicia of unwillingness that manifests either in the form of verbal resistance or something much more physical and vigorous. That’s been the standard. But another way to think about this, which I think is the more contemporary way and the way that reformers are advocating or advocates for changes in sexual assault law are moving toward and certainly the college standards tend to reflect, is to say why do we think of it that way? What other thing do we think of that would work that way? We don’t say, well, it’s not a home invasion unless you scream get out when the robbers come in your house or it’s not a theft of your bicycle unless you’re saying no and you make sure to lock it up. We don’t really have a frame of sort of thinking about crime or offenses against other people’s interests, of property interests, personal bodily interests, whatever. Where we would say this, where we would say you’re allowed to harm another person or hurt another person unless they tell you don’t, unless they tell you stop.
[00:33:49.610] – Erin Murphy
And the way in which this standard, this historical standard that presumes consent can work kind of weird outcomes in cases is particularly visible when you think about cases where someone doesn’t even have a meaningful opportunity to offer that kind of feedback. So the classic example in the case of contact offenses is in the gropes and grabs context. Oftentimes these gropes and grabs are happening by surprise. You’re on the bus and someone’s groping, or you’re walking down the street and someone grabs. And when that’s, how do we even have a chance to say no before the grab occurs or before the grope occurs? And so the standard ends up not working very well. A standard that relies on someone’s expression of unwillingness in a verbal or physical way in order to establish that the contact or the intercourse is unwanted has a very transparently, strange result in cases where there’s not even a chance to have expressed that. You also see this in the intercourse context in surprise cases. So it’s obviously a lot easier to kind of sneak up on someone to grope or grab them than to engage in intercourse. But there are cases where circumstantially most people just intuit.
[00:35:12.750] – Erin Murphy
Yeah, I don’t think sex was on the table there. But the individual is so shocked and surprised that they’re not expressing the lack of consent verbally or what have you. And so the outcome is, well, that’s not sexual assault under a legal standard that requires some evidence of unwillingness. And yet under our kind of lived experience, we know that just doesn’t work. So to give some examples that I’m thinking of here, a common theme in many jurisdictions is actually a massage abuse. So somebody’s getting a professional massage at a professional establishment, this could be a happy ending kind of situation, a straight up massage. And so they’re relaxed and they’re kind of zoned out, and they’re also vulnerable because they’re naked or they’re undressed, at least partially, and they suddenly think they have experienced a sensation of penetration, digital penetration, object penetration, most typically, although also possible other forms of penetration. And in that moment, they’re kind of shaking their heads, like, what is happening? And they’re so shocked and they’re startled awake, but they may not have the kind of faculty at that moment to immediately say no. And even if at that exact moment they say, what are you doing?
[00:36:32.420] – Erin Murphy
Stop. Get off of me. And they run out. If you require expressions of unwillingness prior to the act of penetration and if the masseuse withdrew upon hearing no, the masseuse has not violated the technical line of the law because the law says you’re allowed to penetrate unless someone says unwilling. So as soon as the person said no, I stopped. So I never penetrated. Someone who was expressing unwillingness can see why that is an unsatisfying conclusion. There are also cases that come up that are similar in character where other types of sort of fact patterns suggest that this is not a willing situation. And yet technically, the person, because of shock or surprise, hasn’t had a meaningful chance to say no or to express unwillingness. So you have everything from stranger rape cases where someone sort of jumps out and grabs someone and in that moment they just don’t have the kind of wherewithal to scream or say anything. So they freeze, which is a kind of documented social science phenomenon. And the frozenness precludes a sexual assault charge of this kind because they never resist and they never say no. There’s a case sometimes the students read that involves a person biking.
[00:37:53.230] – Erin Murphy
They’re cycling and literally some guy comes up and says, like, my girlfriend’s not satisfying me. And just picks the woman off the bicycle and carries her into the woods. She’s in a park and sexually assaults her and she’s so frozen and shocked, she doesn’t even say no or call for help. And the conclusion is, well, it can’t be sexual assault because she never said no. She never expressed unwillingness. She never resisted in any way. And yet contextually, I think many of us can look at those facts and say that sounds like someone out for a bike ride. Not one of these difficult he said, she said situations. There’s also cases that arise when kind of sleepover people sleeping over in spaces end up taking liberties with others. And so you’ll have relatives. Two roommates will have one of them will have a brother or a cousin or someone who will come to stay and they’re supposed to sleep in the couch, in the living room and in the middle of the night they sneak into the roommate’s bedroom kind of thing. Or there are cases that involve relatives where the uncle is sexually assaulting the niece but the niece is a grown.
[00:39:04.120] – Erin Murphy
She’s 20 or 19 or 18, and the uncle is 50 or whatever. So it’s not in violation of statutory rape laws, age based laws, situations where we think from the context we can easily tell this is not a willing participant in the sexual activity. And yet a standard that relies on some showing of unwillingness will fail to vindicate those victims interests and fail to show their interests were legitimate. In the absence of this expression, I have more case examples, but let me move forward. The other thing about a standard that is presuming consent in this way is that historically it’s ignored two things that are also common factually in these kinds of situations. One is it’s ignored implicit violence. Now, in theory, a threat can be implicit or explicit so it doesn’t have to. But many factual situations can involve isolation of an individual disregard of verbal statements I want to go home now, or can’t you just let me out? Or things like that. It can involve physical size differentials one actor significantly larger than another actor. So those kinds of implicit threats isolating someone, disregarding their request, having a physical presence that is obviously able to dominate the other person those kinds of implicit threats haven’t really been part of how we think about willingness either.
[00:40:37.200] – Erin Murphy
And so in the traditional standard, and one that requires unwillingness, there isn’t a sense that, like, well, what’s the implication of resisting someone if you’re in the middle of the woods and you’re dependent on them to drive you? Home. And they’re physically much larger than you, and they’ve already indicated an unwillingness to listen to your request. I want to go home or whatever. So there isn’t a kind of way to assess a person’s unwillingness in this model on the basis of those kind of environmental factors. Some courts have tried or have kind of been more willing to say, well, we’ll take some of these circumstantial clues about unwillingness, but it’s not a given, and it’s not sort of natural in the framework, let’s put it that way. The other thing, last thing I’ll say about this is that these kind of standards also can ignore contextual relationships. So they can ignore whether, for instance, two people have a history of a violent relationship and that obviously can dictate or determine as well whether something is truly willing or unwilling in the moment, whether the activity is wanted or not. It ignores, as I suggested, a professional relationship.
[00:41:46.610] – Erin Murphy
So whether it’s a masseuse or a police officer driving someone home or any other situation, a doctor, there’s, medical professional cases, there’s, holistic provider cases, anyone who might have kind of a professional orientation to the individual. This unwillingness standard doesn’t always just assume, well, if you went to pay for a massage, you’re presumed unwilling. There’s no sense of a presumption of unwillingness given certain professional or status relationships to people or certain historical patterns of violence and so forth. Okay, so that leads us to where we landed in terms of our standard. And I want to wrap up soon because I want to make sure we have plenty of time. But let me tell you a little bit about our standard, a little bit about the law that implements it and how that works, and then a little bit about how Connecticut might think about its own standards and how to address them. So our standard, as I told you, is contextual consent, which is different in the subtle way from affirmative consent. So just going back to this chart with the jurisdictions and all the different places, affirmative consent, which you see here is roughly 15 jurisdictions, is a notion that a person must have affirmatively indicated willingness of some kind.
[00:43:08.090] – Erin Murphy
What does that mean? That could be verbal. Yes, let’s do this. I want whatever. It could also be behavioral. I take off my own clothes or I touch the other person. There are lots of ways our behavior can indicate willingness, not just our words. No jurisdiction in America, no criminal liability in America turns on verbal willingness, verbal affirmative consent. In fact, virtually none of the college standards that are out there in American law require verbal consent. This is a misperception that’s in the media a lot. It’s all over kind of talking heads on these issues. There’s an idea that, oh, well, you’re going to have to sign a contract or you’re going to have to engage in this step by step. Can I touch you? Yes. Can I touch you? Yes. And people critical of that model suggest it’s unrealistic, et cetera. No penal law standard requires verbal willingness, even when it’s called affirmative consent. When it’s an affirmative consent statute, what it means is the inquiry on consent is about willingness. And willingness can be found either from verbal statements or from behavior, from the way in which someone is conducting themselves, interacting, et cetera.
[00:44:25.680] – Erin Murphy
The thing about affirmative consent is it doesn’t really have room to infer consent from context. And this is why the Ali wanted to go a slightly different direction toward a contextual consent, or what we call contextual consent. So why might inferring consent from context be important from our perspective? One thing could be that the context allows you to make these kind of inferences when it’s particularly useful in relationships that otherwise other indicia, a willingness might not be as expected. So the classic is a long standing, sexually intimate relationship. A long standing, sexually intimate relationship may involve sexual encounters, including intimate, intimate sexual encounters in which there isn’t direct behavioral or verbal indicia of willingness. But the kind of underlying understanding in the relationship is one of willingness. So when one partner kind of rouses another sleepy partner, you want to make sure they’re awake, right? But you rouse a sleepy partner and initiate a sexual act. The sleepy partner may be passive in that moment. They may not say yes and do this. They may not even participate. They might be kind of just passive, essentially. But in the context of a long standing sexual relationship premised on consent, et cetera, that context can help us infer that consent was present.
[00:46:00.930] – Erin Murphy
Now, to be clear, that’s not about being married or in a long standing relationship. It’s also possible in a relationship where there’s reasons the context suggests this person’s not in fact willing. The prosecutor has the opportunity to show that too. The prosecutor has the opportunity to show this couple hasn’t been intimate for a year, the person just revealed an extramarital affair, et cetera. There’s no reason to think that the passive behavior in that moment actually did signify willingness. But what contextual consent allows that? Affirmative consent forecloses is the possibility that passivity in a moment could be properly inferred to signal willingness. So that’s one thing our standard does that differentiates it from affirmative consent. To be clear, I think there’s a lot of pros and cons for affirmative consent, and I think each has its values. So I’m happy to discuss that more in Q A, if you want to hear more. The second thing that our standard does is it unequivocally defines consent as willingness, which it means to be a person’s subjective willingness. But that is something that manifests in the form of express or inferred behavior, whether that’s verbal or physical, it’s behavior or words, essentially.
[00:47:22.670] – Erin Murphy
And so this is something that we put out directly and say what we’re interested in is what people want. But the way that we know what they want for this legal standard is from their words and actions. And I think in particular, it’s very important to have an objective anchor because ultimately I think we need to be beholden to one another’s expressions as opposed to trying to read each other’s minds. Because I think we’ve shown that reading each other’s minds isn’t always such a great way to go. And so, for better or for worse, I think the things that we put out there are the things that we should be kind of held to in terms of a person’s willingness, which can cut both ways, to be clear. Because it does mean that if someone says no and they mean yes, like no, it’s late, I shouldn’t, and they really meant yes, that person, the actor, is going to be held to the no because that was what they got. If they want to proceed without risk of liability, they need to clarify you said no, I just want to make sure you really want to say no because I’m up for this.
[00:48:25.140] – Erin Murphy
And if the other person is like no, I definitely don’t, then whether they think the actor thinks that’s a fake no or not doesn’t matter. A no is a no. On the other hand, it means that a person who says yes in the absence of compulsion like a gun or to their head or whatever, but a person who is indicating willingness, even if internally they’re having doubts or so forth, that willingness has legal force as well. And again, it can cut both ways because of course we recognize in the social science there are cases where people do acquiesce and it’s not a genuine expression of their will. But we felt as a legal standard for penal law it was important to say a person who is saying yes or acquiescing in an affirmative way, that willingness can be taken for what it is in the absence of any reason to believe it’s not what it purports to be. The third thing about our standard is that we say explicitly rather, that there is no resistance requirement. You do not have to show that the victim said no. You do not have to show that anybody pushed back.
[00:49:27.130] – Erin Murphy
We say that you can consider those things in the context of all the circumstances. And by that we mean to say that certainly a jury is entitled to hear if a victim said no or a victim pushed back. And certainly a jury is entitled to consider that in trying to determine whether consent was present or absent. But they’re not going to be told. If you don’t have evidence of a no or evidence of a pushback or whatever, then consent is present. The assumption is consent is something you affirmatively indicate. You indicate through your behavior or words. It’s not something that we determine by finding whether somebody said no or resisted in any way. And then the last thing, I’ll skip four, which kind of refers to some other ineffective provisions. But the last thing part five here says is that certain verbal indicia establish lack of consent. And that is just meant to take off the table the arguments that sometimes get made that a no means a yes or a stop means go or don’t means do. And to make clear in law that if you get a no or a stop or a don’t, there’s no room to argue that means yes go.
[00:50:36.940] – Erin Murphy
You need to get a yes go, or you need to have behavioral indicia of a yes go in order to override the no stop. And I think that is meant to be responsive to what we know through the case law. And we know based on empirical work in general, which is that many times cases involve efforts to verbally resist that are overridden by the other actor and ignored by the other actor. And this is meant to give force of law to a verbal statement of refusal. Again, it’s not required. You can find the absence of consent even without no stop don’t. But it’s meant to kind of bolster up or shore up the no stop don’ts as signs of lack of consent. So that is the definition part here is the standard or the law part that implements it. The key things to observe here is that, again, you have to have an actual law. It’s not enough just to define consent. You have to have an actual law that makes it matter. Just going back to Connecticut, if you as a legislative body where is Connecticut? No goodness wrote a legal standard that here we go.
[00:51:46.840] – Erin Murphy
Sorry. If you wrote a legal standard that defined consent in the most elaborate way possible, consent is the signing of a contract notarized by a lawyer, but you did nothing to change the substantive laws of the jurisdiction. There’s no place in this regime for that consent to matter other than in this misdemeanor offense. So if what is imagined is we are going to make it more serious to punish a more serious offense, to punish a person who intrudes on another with sexual penetration in the absence of consent, you need a law that tells you sexual assault is sex without consent. Now, actually, let me add another piece here that is just coming to mind but is important. When we wrote our scheme, and I’m happy again to talk more about this in the Q A, we felt it was important to distinguish among people who engage in this sexual conduct on the basis of degrees of culpability, deterrence, all the kind of classic rationales for punishment. But the idea here being that many advocates and some of you may feel this way or many of you may feel this way, feel that we should equate all acts of sexual intrusion so whether it’s at gunpoint or whether it’s overriding a no or whether it’s simply in the absence of an indicia of willingness.
[00:53:07.140] – Erin Murphy
All three of those are sexual assault without consent and should be punished at the same level or the same way. I understand those arguments, and I think there’s something to be said for them, but that was not the route we took, and it was not the direction we thought was the right way to go. We felt it still was important to distinguish among the ways in which people engage in sexual assault, which is to say an actor who’s using force, an actor who is making threats of violence, an actor who is using a weapon those are all things that we felt distinguished and aggravated the conduct. Whereas actors who are acting without consent but the absence of all those other kinds of any other kinds of aggravators simply were different kind of actors and did not deserve the same degree of punishment and should not be equated to someone who’s acting with a much clearer sense of not clearer sense, but a much more deviant, frankly mentality toward sexual submission. Someone who’s securing that sexual submission not just by taking advantage of another person’s lack of consent, but by actually threatening physical violence or actually using weapons or physical violence.
[00:54:28.400] – Erin Murphy
So our sexual assault in the absence of consent is our lowest and it’s sort of the base level sexual assault offense on the penetration side. I didn’t throw it up here, but I could put it up if you want. We also have a contact offense, which is a low level misdemeanor, which is premised on sexual assault without sexual contact, without consent. So again, that offense is virtually identical to the Connecticut offense, sexual assault in the fourth degree, where consent is defined in our contextual consent terms. The last thing I want to point out about our statute is that we chose to go with a reckless mens raya. Traditionally, in a kind of contemporary frame, the mental states a person might have could be negligence where a reasonable person would be aware of the absence of consent. That’s the standard that the Connecticut court chose for that fourth degree offense. It could be recklessness, a conscious disregard of a substantial risk that there’s no consent. It could be knowledge. The person knows they’re practically certain there’s no consent, or it could be purpose they’re acting specifically without the consent. We felt that reckless was appropriate because for us, we thought that an actor who is aware of a substantial risk that the other person is not willing to engage in the sexual activity should be held responsible for proceeding and engaging in the sexual activity.
[00:55:54.600] – Erin Murphy
And again, this is particularly, I think, important in the context of a penetration offense. Sexually penetrating another person’s body is a big deal. However that penetration takes place, it’s a serious thing, and it should be treated as a serious thing inasmuch as the law should say, number one, you should not assume you have permission to sexually penetrate other people in the absence of indicia that they are willing to be penetrated. And number two, if there isn’t that indicia and you’re aware of a substantial risk that they’re unwilling to be penetrated, you should err on the side of caution and not engage in the sexual penetration. You shouldn’t say, well, there’s a substantial risk that they don’t want to have this sexual encounter, but I’m going to go ahead and take the risk. If the person takes the risk and it turns out that, in fact, the encounter was unwanted and it’s reported, et cetera, then the actor who went and assumed that risk will bear the cost of that risk, as opposed to saying, well, either you’re allowed to act unless someone resists or fights you off, or saying, well, if it’s risky, you can take the risk and hope for the best.
[00:57:02.780] – Erin Murphy
So let me end there just by reiterating where we started earlier, which is that in thinking about Connecticut and the ways in which Connecticut could respond legislatively to this moment, one could be to officially shore up that definition, that the Connecticut court chose or to choose a version of know, contextual consent or some other standard and to put that in the code so that it is there. The second could be and must be that that definition will only have meaning especially as regards a penetration cell offense, if there are modifications made to the actual statutory scheme so that there’s a place for a crime of sexual assault or sexual penetration without consent. And then lastly, it’s worth thinking about the mental state of the actor that will be required once you’ve proved sexual penetration, once you’ve proved the absence of consent. What do you also have to prove visa vis the actor’s awareness of the absence of consent? And I think all three of those could be transformative, obviously in many ways. So let me stop there and welcome questions or comments in my chat. I think closed comments in the chat, however, is best to do.
[00:58:20.130] – Erin Murphy
In my class we use the participants raise hand window, but people can also just unmute or put themselves on the camera if there’s any questions.
[00:58:29.010] – Lucy Nolan
Hi, Erin, it’s Lucy Nolan and I have some questions from people who have been asking in the given what this was about, we were a little unfair unsure about opening it up to everybody. So thank you very much. That was really I’ve got tons of notes, so I appreciate that and I want to let everyone know that apparently there are two of me on the chat. So the one that’s speaking is if you have questions, that’s who you should send them to please. So if one question is someone wanted to ask what are the pros and cons for both contextual consent and affirmative consent?
[00:59:13.570] – Erin Murphy
Yeah, that’s a great question. So I think affirmative consent is the most full throated expression of the idea that you shouldn’t sexually penetrate I’m going to put it in the penetration context, but obviously it goes for context, too, but you shouldn’t sexually penetrate other people unless it’s clear that’s what they want. And it’s not even like, as I said, a verbal standard. It still requires a behavioral clue. It still allows a behavioral clue, but it does affirm the basic idea that each person’s entitled to sexual autonomy. They get to be the gatekeeper of who is penetrating their body, and that the law reinforces that by telling actors who would want to penetrate another person. You better be sure you can. And again, I think we see lots of areas of law. I was going to throw up a slide with consent, other forms of consent in Connecticut, but I thought it would take too much time or be distracting. But there’s other places in the law where we talk about consent in various ways. We talk about consent to enter partnerships, we talk about consent for contracts. We talk about consent to transfer property. There’s lots of notions of consent floating around.
[01:00:28.860] – Erin Murphy
And again, I can’t say I’ve exhaustively looked at every aspect of consent in the law, but very few of them, if any, define it in the way that we do in sexual assault, which is basically full steam ahead unless somebody stops you. Usually there’s some notion of mutuality of agreement, and there’s a reason why when the connecticut high court was deciding the meaning of consent, it goes and looks in a dictionary, and consent doesn’t mean nobody stopped you. Consent means capable, deliberate, voluntary agreement. The point of, I think, affirmative consent is to affirm that it’s to give consent its common sense, everyday meaning. It’s to affirm the seriousness of the act in which a person engages in and the need for shorty about the consent. I think the drawback of affirmative consent or the appeal of contextual consent is several folds. One is that it is a norm shift to move to a more affirmative consent framework. And we talked about this many times, and I think there’s a lot of debate still about how much of a shift it is. A lot of people say, well, kids in college, they all learn these very affirmative consent standards.
[01:01:44.150] – Erin Murphy
So by the time they’re older, they’re drilled in their heads. And it’s actually not a radical shift from earlier conceptions of consent. Other people point out, well, 50% of people in our country don’t go to college, and we have very little sexual education in high schools. And you might even say people that don’t go to college are most likely to not have received any sex ed. We have a puritanish culture that doesn’t like talking about sex. So people don’t really get information about what healthy consent or healthy sexual conversation looks like and how to pattern it. And there’s a lot of cultural stuff out. There that doesn’t model consent in this way, that actually models more of a resistance standard or even, frankly, a lot of cultural things that model resistance as consent that reinforce that principle. So I’m thinking in part of half the romantic comedies you’ve ever watched, where the big climatic romantic moment is preceded by a lot of resistance verbal or even physical, or in the wake of me too, there was like the kind of reaction to the baby it’s Cold Outside song where the whole song is basically like, no, and it’s supposed to be romantic and lovely.
[01:02:57.910] – Erin Murphy
So how much we’re in a cultural zeitgeist moment or not, I think some of the idea about a more contextual consent standards is it’s one that allows for the context of the circumstances to play a role as well, which opens up a little more space in those kind of transitional, ambiguous moments. And then the last thing I’ll say about contextual consent that I think is important is that there is also a sense I often say this when I talk about sexual assault laws and take it for what it’s worth, but we have a very bifurcated or sexual assault in our history is a complicated topic. The dominant narrative which is accurate, I think, is one in which it is a very heterosexual idea. It started as an idea really founded in vindicating the rights of a father or a husband as against a child, a female child’s chastity or a wife’s, fidelity that’s reflected in the law, the common law ideas very much were about a certain framework of male female relationships. They were largely about white people and not about black women or persons with lesser status or protection for socioeconomic or other reasons.
[01:04:20.850] – Erin Murphy
And they were very heterosexual both in their focus on marriage and everything about that. And now as we move away from that, I think they’re opening up in many ways, including a recognition of same sex violence, recognition of same sex sexual violence, recognition of other vulnerable populations like sex workers who traditionally we’d think, oh, there’s no such thing as sexual assault for a sex worker, understanding that that’s not true. But the other part of sexual assault that’s important to tell is it has been a political tool and a weapon in history. It has been a charge that has been used for political and other purposes. It has obviously been the source of extrajudicial lynchings in the civil rights era where accusations mostly by white women against black men that were erroneous. It’s one of the leading when you look at the exoneration cases, interracial rape and blackmail defendants is a leading example of miscarriages of justice in that area. And the way in which sexual assault charges, especially like the period of kind of when same sex sexual behavior was illegal, the use of that kind of accusation for political purposes, it is a political area, for better or for worse in both ways.
[01:05:42.900] – Erin Murphy
An area of excess and abuse and an area of underreporting and devaluation of victims. And so both of those stories are true and I could complicate them even more. But the point being that I think one of the things that I think contextual consent tries to recognize is that because of the volatility of this charge, it’s important to leave space for a fact finder. To say, I believe in the context of all the circumstances, there was or was not consent in this situation, even in the absence of direct testimony of a behavioral indicia or something like that. For those cases that may toe the line a little bit closer, but it’s a plus or minus. It kind of depends on how far you want to push the law to go.
[01:06:30.590] – Lucy Nolan
Okay, thank you. So I have a follow up question for that, is that can you give another example of how context can help understand consent in a situation?
[01:06:42.050] – Erin Murphy
Yeah, I mean, I think a lot of the examples that come to mind for me are factual cases which in a traditional model would fail, but in a contextual consent model or an affirmative consent model surely would help. So let me give another case that is maybe a way to understand this. So there’s a case where a young woman, like a 22 year old young woman is getting married and the night before her weding she goes to stay with her aunt. Yeah, I think it’s her aunt and she’s asleep in the living room floor. That’s where they had her sleep. And the aunt’s boyfriend in the middle of the night wakes her up and sexually penetrates her. And her testimony is basically like it was the night before my wedding night or my wedding, it was my aunt’s boyfriend. And I couldn’t believe it was happening. I kept thinking I was going to ruin my wedding. How am I going to have a wedding if I’m in the middle of reporting a rape? Basically, she doesn’t scream. She doesn’t call for her aunt. She doesn’t report it. The next morning, she goes through with her wedding.
[01:07:54.650] – Erin Murphy
And I think later that day I forget exactly how it comes to light. But basically she never does anything physical, behaviorally, and she says, I just lay there shocked and my mind racing. And that’s a situation I think, where context helps us understand that was not a consensual encounter. It just seems out of the context. And that gives us something in a passivity case that otherwise wouldn’t meet a traditional resistance standard of any kind. Now to be clear, that would meet also an affirmative consent. If you have an affirmative consent standard that also would meet her passivity isn’t going to suffice to be affirmative consent. Right. So if the question is where do you lose in context? That’s a different question. But that’s where I think an example of context can help give you some purchase on consent even in the absence of behavioral clues of willingness or lack of willingness.
[01:08:56.650] – Lucy Nolan
Okay, so actually, to take this a step further and this is a question that I had, and this is a question from one of our lawyers is how would you prove lack of consent in a case where the victim was sleeping in bed with her offender’s wife after a wedding and she willingly partook in sexual intercourse, thinking it was her husband? Once she realized it wasn’t her husband, she was devastated and the state could not prosecute because there was no crime committed due to the fact that there was consent per the law, but she did not consensually have sex with this man. I want to say that there was a law a couple of years ago that was put in. To have that sort of misrepresentation would be against the law because there have been cases where I think college, in college somebody goes to bed and they think their boyfriend is coming in, so they consent thinking they’re having sex with their boyfriend. And it’s.
[01:10:04.930] – Erin Murphy
Not super common, but it happens a decent amount of times, these deception cases. So we think of this the way we conceptualize this is what we, we think of this as an example of ineffective consent. And we have a lot of different provisions in our code that address situations in which consent is ineffective. So the most archetypal that no one would dispute is someone might put a gun to your head and say, submit to sex with me and pretend like you like it, or you better like it and say yes or I’ll kill you. And the person’s saying yes and being enthusiastic but it’s because they’re at gunpoint, it’s not actually genuine consent. And that would be another example of an ineffective consent situation. So here I put up on the screen. I hope you can see the prohibited deception portion of our charge. And this is for situations in which consent, whether given or not, someone can be enthusiastically participating. They think it’s their spouse or they could be passive or whatever, but it’s ineffective the consent that they give. Because in our case, you can see the person knowingly causes them to believe falsely that someone personally known to that person.
[01:11:14.100] – Erin Murphy
Now to be like you could take a position that any impersonation is criminal. So if I roll up and I say I’m Julia Roberts and you’d believe know, then so be it. But we didn’t find law that tend to go that way. And I think it is a little tricky because for better or for know, I think a lot of people would say for worse. But for better or for worse, there’s a lot of kind of puffing that goes on in the dating world. And so people do say things like, oh, I’m a founder of a new company, or they say lots of things that are false and deceiving. And there was a sense that if you’re too aggressive about that. It’s just unrealistic and unworkable that there’s just too much puffing. But we felt that this particular kind of situation where an individual is essentially doing what you described, which is exploiting, knowingly exploiting the fact that somebody thinks that they’re someone else and that someone else is someone personally known to them. I’m pretending to be your spouse. I’m the twin brother pretending to be the boyfriend. You think I’m your lab partner you’ve had a crush on forever.
[01:12:21.530] – Erin Murphy
But in fact, it’s Halloween, I’m wearing a costume, and I’m not, or whatever. Somebody who takes advantage knowingly of someone who thinks they’re engaging in intimacy with a different person that they would be engaging in intimacy with if it were that person. That is what we consider ineffective consent and penalized on that ground.
[01:12:40.610] – Lucy Nolan
Okay, great. Thank you. I don’t see any other questions. I’m sorry. I do have another question because it sorry. What about tonic immobility or freezing with regards to consent?
[01:13:00.890] – Erin Murphy
Yeah, this has been an ongoing debate. This was a big part of the debate in Ali’s process at all stages because a lot of advocates pointed to really important, I think, findings about those phenomena. And I’ll just say a word about them and then I can sort of say how they fit. So this idea of tonic immobility or the kind of old school way, was this notion of frozen fright or whatever. These concepts were largely, I think, historically linked to a feminine response. Like the woman is literally the deer cotton headlights idea. But one thing that we’ve learned through social science is that it’s not just a feminine reaction. So a lot of the 70s feminist movement was sort of trying to say the law is taking this masculine approach of physical fighting and that it should recognize that female resistance might look different, especially because women might be smaller in stature, and so you’re going to lose that fight every time. So you come up with other strategies, et cetera. And one thing we’ve learned through some of the social science is that things like tonic immobility are really gender neutral, that men also freeze in sexual assault situations.
[01:14:07.860] – Erin Murphy
It’s not really a gender response. It’s more a circumstantial personality, et cetera type response. And more importantly, we’ve learned as well that it’s not just sexual assault where this happens. This is not some feature unique to sexual assault. So you see this in active shooter cases, you see this in natural disaster cases. And I think intuitively, we can relate to that. Think about an active shooter. There are people who freeze and they just cannot move. They know I’m standing right in the middle of the whatever, but they are just frozen in terror and they cannot respond. And there are people who will immediately duck, recover, and there are all people who immediately try to fight back with whatever they can. And we can’t really predict which one of those people will be until we’re in a specific situation, but all of those typologies are observed. So the first is to say that I think this idea of tonic immobility or frozen fright has a lot of empirical, social, scientific support in the literature as something that occurs it happens in this context but also other contexts where it fits in contextual consent is trickier. And this is where some of the advocacy groups, I think would have preferred affirmative consent.
[01:15:19.570] – Erin Murphy
In affirmative consent, I think it fits really nicely because a person who’s experiencing that kind of tonic immobility isn’t affirmatively consenting. So if you have an affirmative consent standard and someone is essentially frozen, you’re likely to be able to prove beyond a reasonable doubt the absence of affirmative consent. Right. That’s where contextual consent, I think does it has room for those cases, but it doesn’t definitively decide them as well as affirmative consent standards would. So in a tonic immobility case under contextual consent standard, you would be looking at things like the totality of the circumstances, which could include the preceding conduct, the relationship between the two, all those kind of clues that might indicate whether or not this was willing or unwilling on the part of the complainant. So you allow for a broader inquiry, which I think many people would don’t like some people favor, some people disfavor, but it leaves room to make a finding that the passive behavior was lack of consent, but it also makes room for passive behavior to be considered consent. So it has the possibility of going both ways, which makes it one of, I think, the harder I mean, the contextual consent standard.
[01:16:38.820] – Erin Murphy
If I had to really just boil it down, it leaves room for passivity to constitute consent, and that can be a plus in cases where we think passivity really did mean consent. But it also can be a minus in cases where we think passivity did not mean consent. But a prosecutor is going to have a hard time proving that beyond a reasonable doubt.
[01:16:57.830] – Lucy Nolan
Great. Thank really fascinating to me. So thank you so much. I think we want to bring on Beth and to elise is going to get us on have. All right there’s Beth. So Beth, do you have any thoughts about what you heard today?
[01:17:30.530] – Beth Hamilton
Some of the same questions that you’ve already answered were some of the and particularly the last question right. Was something that was really on my mind. And I just want to one just to thank you and appreciate everything. The tone that you strike and the way that you’re able to really talk through all of this makes it just both so accessible. And as a fellow parent of a third grader, it sounds really like the conversations I have with my children. Right. So it’s really logical. They’re really clear ways to think through it. And I think that it really gives us great direction here in the state to think about what we’ve codified before with our college campuses is affirmative consent. And I think based on all the information we had at the time, that was a great decision. But it’s really interesting to bring in the contextual consent into the conversation and really think about what makes sense moving forward in this state. But I could not say enough about how much, similar to Lucy, how many notes I took, and how much I really appreciate the tone that you’re able to strike in making it just so simple and accessible and logical.
[01:18:24.930] – Erin Murphy
Let me say one more thing about contextual consent, just based on what you said, too. I teach my children affirmative consent if I was talking about what is the best practice in a sexual relationship, if I were thinking about an educational context, like a college campus where we’re trying to transmit information about behavioral standards. I mean, college campuses have a lot of rules that are not criminal rules. It’s not a crime to plagiarize, but it is something that could get you kicked out of college. Right? So I also think it’s important to remember that it’s not a one size fits all thing. There could be a standard for optimal behavior that looks very much like a verbal affirmative consent. That might be what we tell our children or we encourage our loved ones to do. There could be an educational standard. This is the standard our school applies to determine disciplinary infractions. And then there’s the penal law. This is a crime that we can put you in prison for. And so we were also in the contextual consent, context mindful of those distinctions, which is to say what we use the authority of the state to incarcerate for could be a standard that does allow some slippage in terms of kind of optimal sexual encounters.
[01:19:35.230] – Erin Murphy
But because it’s the penal law, it has a little more room than a campus standard or your personal best practices. Absolutely.
[01:19:45.690] – Representative Jillian Gilcrest
So the irony here this is, Jillian, is that I, too, have a third grader. So when we first talked years ago and you said it started in 2012, I thought the same thing, like, wow, now my daughter’s in third grade, so that’s just fascinating.
[01:20:04.130] – Erin Murphy
I keep joking that she’s not going to college with this project going on, so it’s got to wind up soon.
[01:20:09.730] – Representative Jillian Gilcrest
Yes, it definitely does. But truly, thank you for working on it this long, because yeah, that’s a long time since 2012, all of your.
[01:20:20.090] – Erin Murphy
Work and advocacy, because it’s only as useful as it ends up being of value to those of you who actually do this work day in and day out. So I appreciate that.
[01:20:28.110] – Representative Jillian Gilcrest
Well, you’re welcome. And I echo what Beth had to say. You explain it in such a wonderful way. I felt like I was at one of the best college classes I’ve ever attended. So thank you. But also giving examples, I hope, for those on the phone who work as advocates or who’ve done this work.
[01:20:50.210] – Representative Jillian Gilcrest
[01:20:50.750] – Representative Jillian Gilcrest
It was so meaningful to me. I started out as a sexual assault crisis advocate, and one of the examples you described, I can see in my head still the victim I was at the hospital with. And so it is just so rewarding to be having this conversation that is discussing real life experiences of victims who oftentimes don’t get to seek criminal justice. And so it is my hope that our next steps will be to take what we learn today and to have these conversations in Connecticut and to move this work forward. So I truly appreciate you taking the time to share your knowledge with us. And I took many, many notes and planned to follow up for the PowerPoint. So thank you.
[01:21:34.560] – Erin Murphy
My pleasure. It’s a pleasure to be here.
[01:21:37.470] – Lucy Nolan
I just want to let people know that we are recording this, so we will send out a copy of the link so that people can watch it if they want to and likely have it up on our website at some point. So just in case there’s a lot of information there. It’s just so great. So I know I’ll be watching it again, particularly as we get closer to our legislative session.
[01:22:03.330] – Erin Murphy
Wonderful. Well, thank you all much. It was such a great conversation. I appreciate it.
[01:22:07.560] – Representative Jillian Gilcrest
Thank you for being here.
[01:22:08.830] – Erin Murphy
All right, take care.