The Challenge of Defining Rape

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LAST month it was California, this month New York. States across the country are trying to figure out how to address the problem of sexual assault more effectively, and more often than not, they are looking to redefine the scope of sexual misconduct.

California’s new law requires universities receiving state funding to switch from a “no means no” approach to a “yes means yes” standard, requiring partners to make an “affirmative, unambiguous and conscious decision” before having sex, and making clear that silence or a lack of resistance cannot be interpreted as consent. Gov. Andrew M. Cuomo of New York announced that the State University of New York would similarly define consent as an affirmative act on all its campuses, one that requires “clear, knowing and voluntary” participation.

With an effort also underway by the American Law Institute to reconsider when an assault becomes rape, some legal experts predict that changes to criminal laws in many states may not be far off.

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