Comparing Affirmative Consent Models: Confusion, Substance and Symbolism

Abstract

Sexual assault law reform commonly involves legislating a statement of appropriate standards of sexual interaction in the form of a positive definition of consent. In jurisdictions contemplating a legislated definition, the question of whether to adopt an orthodox attitudinal or unorthodox expressive definition must be confronted. Discussion around the adoption of an unorthodox consent model, commonly known as ‘affirmative consent’, has been beset by confusion, caused in part by the diversity of legal models to which this label has been applied. This article sets out a detailed comparison of the doctrinal mechanisms in jurisdictions commonly identified as having adopted some version of affirmative consent. The analysis sheds light on the variety of ways rape law can be reconstructed to reflect the aspiration of communicative sexuality, while also highlighting the core unifying objective of transforming the legal meaning of passivity. From the comparative analysis, four key points of divergence are highlighted, alongside the implications of those points of divergence for jurisdictions contemplating affirmative consent reform. Finally, the article notes the paucity of evidence on the substantive impacts of affirmative consent, and discusses the potential educative and symbolic functions of embracing such a model, despite ongoing uncertainty as to its practical effects.