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47 U. of Pac. L. Rev. 665 (2015-2016)
Consent: What It Means and Why It's Time to Require It

handle is hein.journals/mcglr47 and id is 713 raw text is: Consent: What It Means and Why It's Time to Require It Stephen J. Schulhofer* TABLE OF CONTENTS I. INTRODUCTION .................................................... 665 II. THE MEANING OF CONSENT ......................................... 668 III. THE IMPORTANCE OF CONSENT. ............................... ....... 669 A. The Normative Case................................... 670 B. The Current State of Legal and Social Norms.......................... 671 C. Practical Concerns... .................................... 674 1. The Reality of Sexual Interaction.. ................ ........ 674 2. Gap-Fillers ....................................... 675 3. Workability ....................................... 676 4. The Burden of Proof.. ................................ 676 5. Over-Incarceration ............................ ..... 677 6. Plea Bargaining. ................................... 678 7. Re-shaping Social Norms............................. 678 8. Overly Punitive Responses............................ 679 9. Discriminatory Enforcement........................... 680 IV. CONCLUSION ...................................................... 681 I. INTRODUCTION Are we ready to acknowledge that no means no? American law still retains many remnants of the contrary view that no does not necessarily mean no. In roughly half the states, unwanted penetration is not a felony absent some sort of physical force or coercion beyond any forcible actions inherent in penetration itself.' This issue, however, need not be retraced here; the unmistakable trend in * I owe special thanks, deep appreciation, and acknowledgement of contributions to this Article far beyond the ordinary to my energetic and insightful colleague, collaborator and MPC co-Reporter Erin Murphy. I am grateful to Professor Michael Vitiello for supporting this much-needed colloquium and for thoughtfully challenging my current and prior efforts in this area over the many decades we have been colleagues. My understanding of the issues has also benefited from advice, consultation and extensive conversation with others far too numerous to name-the many judges, academics, prosecutors, defense counsel and other lawyers who have made important contributions to the American Law Institute's project to revise Article 213 of the MPC. The views expressed in this Article are exclusively my own. 1. MODEL PENAL CODE § 213.2(1)(a) (AM. LAW INST., Discussion Draft No. 2 Apr. 28, 2015) (hereinafter MPC). 665

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