November 19, 2019 Feature

Inaction Is Not Consent

By Ann Farmer

It wasn’t long ago that women and men who had been raped needed the bruises and cuts to prove the assault. Some states even mandated that they “resist to the utmost.” As courts and legislatures, however, have become more cognizant of the multiple factors that can prevent sexual assault victims from fighting back, that dictate has been scratched from most state statutes.

So it may come as a surprise that the independent Philadelphia-based American Law Institute—which prides itself on clarifying laws and prescribing to legislatures and courts the proper language to use when formulating or revamping statutes—uses the term resistance in its updated definition of consent to engage in sexual activity. This subsection, adopted in 2016, states: “Neither verbal nor physical resistance is required to establish that consent is lacking, but their absence may be considered, in the context of all the circumstances, in determining whether there was consent.”

“This confusing incorporation of resistance is very troublesome,” says Terry Fromson, managing attorney for the Pennsylvania-based Women’s Law Project, noting that it infers consent from both action and inaction, thereby posing the same potential evidentiary trap upon rape victims as before. “It is completely self-contradictory,” she says, “and will be incredibly confusing to apply.”

Many rape victims, of course, do yell and fight back. But scientific studies have shown that people under attack also react in ways that appear counterintuitive to the situation. For instance, some lapse into a state of “frozen fright.” Consider the 2015 rigorously researched report by the psychiatrist Kasia Kozlowska, a clinical associate professor at the University of Sydney (Australia), which identified specific defenses that are activated in humans in the context of danger.

Published in the Harvard Review of Psychiatry, the report notes that tonic immobility and collapsed immobility, for example, are psychophysical states akin to paralysis and faintness. Other victims may retreat into a passive, dissociative condition similar to a dream state that makes them feel as though the sexual assault weren’t actually happening.

“All of these are things that can help you survive when you are in the jaws of a predator or when a predator is just about to attack you,” says Jim Hopper, PhD, a clinical psychologist, independent consultant, and teaching associate at Harvard Medical School.

Hopper, an expert on the neurobiology of trauma as it relates to sexual violence, says that in fear-heightened, stress-infused situations, people often instinctively react with reflex and habit behaviors as opposed to rationally chosen ones. “Reflexes are the oldest of all,” he explains. “If someone suddenly runs into a courtroom with an AK-47 and starts shooting at you, what’s going to save your life, if you’re lucky, is reflexive responses and perhaps some habit responses.”

These type of responses, Hopper observes, are “automatic and unchosen” in contrast to someone pausing in such a dire situation and employing higher cognitive abilities to make a reasoned decision about what to do next. “If you stop to think,” he says, “you’re lunch.”

Submission, Hopper says, is a common habitual reaction for women and girls long socialized to tiptoe around the male ego. Faced with an unwanted sexual advance, a woman might instinctively respond by trying to say no nicely to avoid bruised feelings or the man’s wrath. In the case of someone who was sexually abused as a child, she may have felt powerless to do anything except surrender.

“And now they’ve got a boyfriend or a date holding them down on a couch and doing things to them and, just like that, in a flash, their brain cues up those habits of submission from when they were six years old,” Hopper says.

Some people threatened with rape will make a strategic decision to acquiesce to avoid death or physical injury to themselves or to protect someone else. Amy Castillo, a Baltimore pediatrician separated from her mentally unstable husband, surrendered to his demand for sex after he threatened to kill their children as punishment for seeking a divorce. That sexual encounter was noted by a judge in his reasoning to deny her a permanent protective order. Not long after that denial in 2008, the father drowned all three adolescent children in a hotel bathtub.

Recognizing the wide spectrum of ways that sexual assault victims can respond to an attack, the ABA Commission on Domestic and Sexual Violence (CDSV) introduced Resolution 115 at the 2019 ABA Midyear Meeting. As adopted, it states that the ABA “opposes the imposition upon sexual assault victims of a legal burden of resistance before legal protection attaches.”

In August at the ABA Annual Meeting, that commission and the Section of Civil Rights and Social Justice attempted to go further by cosponsoring Resolution 114, which defines affirmative consent as a standard to be used in sexual assault accusations. Similar to actions taken by colleges and universities in defining consent, it states that consent can only be given by someone who is competent to give it, expressed by their clearly articulated words and actions.

The ABA Criminal Justice Section (CJS), however, under pressure from organizations like Washington, D.C.-based National Association of Criminal Defense Lawyers, raised objections. They argued that it could undermine defendants’ constitutionally guaranteed presumption of innocence by shifting the burden of proof onto the defense to prove that a sexual encounter was consensual, potentially resulting in innocent individuals being convicted of sexual assaults.

The CJS’s “ultimate concerns,” e-mailed Mark Schickman, who chairs the CDSV, were that: “(1) inaction or failure to vigorously resist should be an admissible factor that indicates consent; (2) the ‘affirmative consent’ concept is flawed, inconsistent with human experience, and requires an artificial and mechanistic preamble to every touching (i.e., every morning that I want to touch my wife of 25 years who is lying next to me, I must first ask ‘may I touch you this morning?’)”

“It was quite contentious in that we disagreed strongly,” says Laurel Bellows, former ABA president and former chair of the ABA Commission on Women in the Profession, who supported the resolution. She believes it was the first time that the ABA had a debate on consent. Her observation is that it became divided largely along gender lines. “Primarily the men were voting for silence was consent,” she says, “and the women understood that silence is not consent.”

Unable to reach a consensus, the motion was tabled for the time being. Stephen Saltzburg, a delegate for the CJS, indicated that the section is open to a revision that elicits its members’ support. “It would be a lot better to get this done right,” he is reported to have said at the meeting. Schickman also indicated that passage of Resolution 114 remains a priority, saying, “At the fall meeting, we’ll have a discussion of when and how to reintroduce it.”

Legal definitions of consent have shifted over the years. It used to be that wives had no legal grounds to deny their husbands sex, even by force. Spousal rape only became a crime in all 50 states in 1993. California became the first state, in 2014, to enact a “Yes Means Yes” law, which requires voluntary, affirmative, and conscious consent to engage in sexual activity, which can be withdrawn at any point.

But stereotypes and misbeliefs persist. New Jersey Superior Court Judge John Russo Jr. suggested to a rape victim in 2016 that she could stop an assault by closing her legs and blocking her body parts. California Judge Derek Johnson remarked that if someone doesn’t want to have sexual intercourse “the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted. . . .”

To curtail that kind of thinking, Lynn Hecht Schafran, who serves on the editorial board of Perspectives and directs the National Judicial Education Program (NJEP) at Legal Momentum in New York City, created a seminar for judges, lawyers, and others to educate them on the behaviors of sexual assault victims. A participant survey resulted in the NJEP publication Judges Tell: What I Wish I Had Known Before I Presided in an Adult Victim Sexual Assault Case, where they describe learning, for instance, that sexual assault is far more prevalent than the general public believes and that it’s common for a victim to display a flat affect while testifying.

“Judges have found this information very helpful in understanding victim behaviors that don’t match common expectations about how sexual assault victims should behave during and after an assault,” Schafran notes.

Other conduct ripe for misinterpretation is the manner in which victims develop, store, and retrieve traumatic memories. Hopper says traumatic memories often return in incomplete, inconsistent, or fragmentary ways, which police and others have construed as the victim not telling the truth, generating a more adversarial inquiry.

The Women’s Law Project works with Pennsylvania police to help them adopt victim-centered interview techniques that support and help victims to recall details of the crime. “They need to interview and not interrogate,” Fromson says.

How police mistreat victims is vividly demonstrated in the acclaimed Netflix series, Unbelievable, based on the true case of Marie, an 18-year-old Washington state woman who was raped and then falsely accused of lying. (ProPublica collaborated with the Marshall Project on the original 2016 Pulitzer Prize–winning story, which has galvanized considerable attention to this issue.)

During heavy-handed police interrogations, Marie (a pseudonym to protect her identity) jumbles up some of her recollections, such as whether she made a phone call while her hands were still tied or not. She, in fact, becomes so rattled by their grilling, she suggests it could have been a dream. Marie quickly recants her dream statement, but the male officers intimidate her into dropping her case, saying that if she fails a lie detector test, she could lose her subsidized housing.

Marie also comes under suspicion for her seemingly detached manner. For someone like her, though, who’d been shuffled through the foster care system and abused along the way, it was simply her way of coping.

“You may have victims for whom violence is so normalized. Sometimes the behaviors you’ll see is not just the trauma from this event, it’s from a lifetime of trauma,” says Jennifer Long, the CEO of Washington, D.C.-based AEquitas, a team of former prosecutors who work to improve prosecution practices related to gender-based violence and human trafficking.

“It is across the board. You may see people joking,” Long says, to make their investigators feel better. Others might cry hysterically. “Often there is shame,” she says, “and information is withheld because victims are embarrassed to talk about the assault. Some may feel they are responsible for what happened because they willingly went with their perpetrator.”

Long notes that she has seen some victims recant just to put an end to the humiliation they feel.

“Everyone wants to talk about—oh, a victim is lying or someone is falsely accused—and that’s important,” Long says. “We don’t want to falsely accuse anyone. But that’s such a tiny part of the narrative and happens so infrequently, [and] it becomes frustrating that that becomes the focus.”

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By Ann Farmer

Based in Brooklyn, New York, Ann Farmer is an independent journalist who used to cover breaking news for The New York Times and did reporting and producing for Court TV.