by Kyla Bishop

The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock.

April has been designated 鈥淪exual Assault Awareness Month鈥� in the United States since . Sexual assault and harassment have consistently made the headlines in recent months, from President Trump鈥檚 鈥溾�� comment to the avalanche of . At the forefront has been the #MeToo movement, with woman after woman, including famous and respected actresses, sharing their stories of sexual assault. What was once swept under the rug is now the hammer being used to shatter the stigma of sexual assault.

Crumbling too is the sense of security once felt by sexual predators. As the #MeToo movement has gained popularity, companies and employers have rushed to disassociate themselves with men accused of sexual misconduct. In November 2017, NBC fired its 鈥渃rown jewel鈥� Matt Lauer after a into several claims of sexual harassment by female staffers. So too was Kevin Spacey fired from Netflix鈥檚 hit original series 鈥淗ouse of Cards鈥� after actor Anthony Rapp alleged that Spacey made towards him when he was only 14. Companies and employers taking the moral high ground has been a beacon of hope for many, but this was not always the case. Even our laws, which regard rape as a one of the most violent crimes a person can commit, did not always punish the perpetrators accordingly.

The , one of the earliest sets of written laws, considered the rape of a virgin as property damage against her father. For a long time, the rape of a woman was considered a against the victim鈥檚 husband or father. The word itself derives from the , or 鈥渟eize鈥�. It wasn鈥檛 until the 11th and 12th centuries that rape began to be considered more as a violent, sexual crime against the victim. At the end of the 13th century, the Statutes of Westminster rapists should the victim鈥檚 family choose not to do so, signifying a fundamental change in rape being viewed as a crime against the State.

Early American colonies defined as 鈥渃arnal knowledge of a woman 10 year or older, forcibly and against her will.鈥� In the late 1800s, temperance and suffrage activists successfully advocated to raise the legal age of consent from 10 to between 14 and 18, depending on the state. Not everyone, however, was excited about this progress. In 1895, , 鈥淚 regard the twelve-year-old girl as being capable of resisting the wiles of the seducer as any older woman.鈥�

Women of color endured even more dire conditions. During the 1800s, most states black women, both free and enslaved, from rape laws. Slave women frequently endured violent sexual abuse which often resulted in pregnancy. If a slave woman attempted to defend herself against such abuse, severely. It was not until 1861 that a black woman could even file rape charges against a white man.

Nearly 100 years later, the emerged as violence against women became a central point in the second-wave feminist movement. The 1960s onward ushered in significant progress in American rape law. It was during this time that rape began to be viewed as a weapon, driven by the desire to exert control over women. Prior to the 1970s, marital rape, or the raping of one spouse by the other, was exempt from many rape laws. In 1976, however, Nebraska became the first state to make marital rape a crime. By 1993, in all 50 states.

Perhaps the most significant change came in 1975 when Congress adopted rules 412, 413, 414, and 415 into the Federal Rules of Evidence. These rules, more commonly known as 鈥� laws, limit the Defendant鈥檚 ability to probe into the sexual behavior, history, or reputation of the alleged victim. Prior to 1975, Defendants could attack an alleged victim鈥檚 credibility by presenting evidence of the victim鈥檚 sexual activity. The public humiliation and embarrassment of having their sexual history dragged out in court became a strong incentive for victims not to report sex crimes. Subject to limited and strict exceptions, rules 412-415 of the Federal Rules of Evidence prevents evidence of a victim鈥檚 sexual history from being used to discredit him or her.

Laws treating sexual assault, harassment, and abuse continue to progress. Thirty-eight states, , have enacted revenge porn laws, criminalizing the distribution of sexually explicit images or videos without the individual鈥檚 consent. What is clear is that continued progress can only be achieved by keeping sexual assault and harassment relevant in the national dialogue. As stories continue to emerge, lawmakers may enact legislation addressing these problems head-on.

The post A Reflection on the History of Sexual Assault Laws in the United States appeared first on The Arkansas Journal of Social Change and Public Service.

The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock.

CW: Rape; Assault

There are several PSAs and programs that proudly claim that 鈥渃onsent is sexy!鈥�. That may be true, but it is not just 鈥渟exy鈥�, it鈥檚 the law, and not obtaining consent for a sexual act is illegal.
In the time it took to write this blog post (about an hour), 78 women have been raped (statistic provided from https://acasa.us/statistics). 78 women, sisters, girlfriends, daughters. But what exactly is rape?

The legal definition of rape in Arkansas states:

(A) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:

(1) By forcible compulsion; or
(2) Who is incapable of consent because he is physically helpless, mentally defective or mentally incapacitated; or
(3) Who is less than fourteen (14) years of age; or
(4) Who is less than eighteen (18) years of age, and the actor:

(a) The victim鈥檚 guardian;
(b) Uncle, aunt, grandparent or step-grandparent, grandparent by adoption; (c) Brother, sister or the whole or half-blood or by adoption;
(d) Nephew, niece or first cousin.

This is Arkansas Code 5-14-103. There are other sexual assault laws in Arkansas such as 5-14-101, Sexual Assault, and 5-14-110, Sexual Indecency With a Child.

Basically, rape is sex without consent. Which leads to the critical question of what is consent, and when is it required.

Consent is when your sexual partner AGREES to a sexual act affirmatively, that consent is freely given, and the partner has the capacity to agree.

There are multiple ways of analyzing consent.

. The three main questions to ask if is there is affirmative consent, was it freely given consent, and was there capacity to consent.

Affirmative consent: This is an expression of consent. The person will expressly say that they want the sexual act to occur. A few questions to consider are if the person expressed words indicating agreement for sexual acts? For example: Yes, I want this. Yes, I like this. Yes, go on. This is a green light, and consent. It is NOT consent if the person says certain terms such as 鈥淚 don鈥檛 know鈥�, 鈥淐an we stop鈥�, or 鈥淣O鈥�. Typically, any expression with 鈥淣O鈥� or any uncertainty is NOT a green light, and NOT consent.

Freely given consent: The second question to ask is whether the consent was freely given. Was the consent offered of the person鈥檚 own free will, without being induced by fraud, coercion, violence, or threat of violence? If they were forced to agree because they were scared, or threatened that is not consent.

Capacity to consent: This is probably the most confusing part of consent. Capacity to consent means the person had the capacity to agree. The question is did the individual have the capacity, or legal ability, to consent?

Arkansas law states that:

There is a lack of consent if a person engages in a sexual act with another person by forcible compulsion or with a person who is incapable of consent because he or she is physically helpless, mentally defective or mentally incapacitated. Arkansas Code 搂搂 5-14-103; 5-14-125.

鈥淢entally defective鈥� means that a person suffers from a mental disease or defect that renders the person: incapable of understanding the nature and consequences of a sexual act; or unaware a sexual act is occurring.

鈥淢entally incapacitated鈥� means that a person is temporarily incapable of appreciating or controlling the person鈥檚 conduct as a result of the influence of a controlled or intoxicating substance: administered to the person without the person鈥檚 consent; or that renders the person unaware a sexual act is occurring.

Sex and Alcohol

This might be the most confusing topic in regards to consent.

It is possible that sex can be consensual when two people have been drinking. There are people who drink, and even get drunk, and still consent to sex. But the issue is that after someone has consumed alcohol, it is much harder to convey consent to the other person, and it hard to determine if the other party has consented. Alcohol can inhibit clear communication, and also increase aggressiveness, both problems that can lead to sexual assault. The best option is to continue to check in with the other party, and keep making sure that they want the sexual acts to continue.

So how much do you need to drink to be unable to consent?

Arkansas has a law stating that a person cannot consent to sex if they are incapacitated by drugs or alcohol. But how 鈥渋ncapacitation鈥� is defined is open to interpretation. While having sex with a passed out person is definitely not consensual, that should not be the only measure of consent. There are more things to consider than just consciousness. For example, a responsible partner would be asking themselves if the person can communicate clearly, are they coherent? Could they drive right now? Are they sober enough to be aware of what is happening? If the answer is no to any of these questions, then it is safe to assume the other person is too incapacitated to legally consent to sex. If there is any doubt, or mixed messages- don鈥檛 do it.

What if your partner said they did not want to have sex while they were sober, but changed their mind after drinking? Although there is no clear law, it is still best to tread carefully, and when in doubt, wait until the other person is fully sober, and then check in again. A few good things to consider are how much alcohol has this person had since you last asked them if they wanted to engage in sexual activity? Has this person indicated that they would want to have sex when they were sober? Even if they did say yes while sober, it is still good to keep asking. Also, another good question to consider is if you have been intoxicated with this person before. If you have, are they usually able to make lucid decisions? It does not necessarily mean they are sober enough to consent, but might give some more context to how intoxicated they are at the moment. On the other hand, if you have never drank with this person before, it is a good idea to be cautious, and continue to ask, and wait until you get a clear, affirmative consent.

In conclusion, if one person, or both parties are drinking it is a good idea to ask before, during, after, and continue checking in during any sexual activity. Check in during any change of activity, check in if you stop and start again, just keep asking. If there is any confusion, do not take the mixed signals as consent. If you have not been sexually active with this person before, or have not been intoxicated with this person before, a good rule of thumb is to NOT mix the two for the first time. Be comfortable with what they are like when they are intoxicated, or be familiar with what they are okay with first, before trying to mix alcohol and sex.

鈥淧hysically helpless鈥� means that a person is: unconscious; physically unable to communicate a lack of consent; or rendered unaware that a sexual act is occurring. Arkansas Code 搂搂 5-14-101.

In short, consent is ALWAYS required. If you are not sure if the act was consensual, that is a good indication that it was not.

The post Consent is Not Just Sexy, it’s Mandatory: A Primer on Consent appeared first on The Arkansas Journal of Social Change and Public Service.