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Re-Writing Rape Laws to Better Focus on Consent

California lawmakers are looking at a new model for the definition of rape—one that emphasizes consent rather than coercion.

By Julie Morse


The California State Capitol in Sacramento. (Photo: Justin Sullivan/Getty Images)

In light of the Brock Turner ruling, members of the California Assembly are aiming to broaden the legal definition of rape, while criminal-law experts are attempting to update the Model Penal Code for Sexual Assault, a change that would affect the way courts across the country evaluate rape.

After Judge Aaron Persky delivered a generously lenient sentence to Brock Turner, who was convicted of three felony charges, this preferential treatment for an educated white defendant continues to stir outrage. As the debate over Turner’s sentence continues, Cristina Garcia and Susan Eggman have produced a proposal to amend Penal Code 261, which defines rape simply as non-consensual sexual intercourse; Garcia and Eggman are now working to include forcible acts of sexual penetration by foreign object under the definition of rape, a crime that currently falls under “sexual assault” — a lesser charge. In order to broaden this definition, though, lawmakers might need to update Article 213 of the Model Penal Code for Sexual Assault and Related Charges.

“We found a loophole in California’s criminal code and need to fix the law to send a strong message that we do not accept rape in California,” Garcia said in a press release. “AB 701 will ensure that all survivors of nonconsensual rape, regardless of the object used, will have equal access to justice.”

“A principal concern of reformers is to shift the focus of the offense from force to the absence of consent.”

The American Law Institute approved Article 213 in 1962, and although considered outdated by some legal experts, it still serves as a guideline for courts and lawmakers across the country. As Article 213 stands, rape happens only when a man has intercourse with a woman who is not his wife by force of “threat of imminent death, serious bodily harm, extreme pain or kidnapping.” The Article also states that, if the victim does not suffer from any physical injury, or if she has voluntarily engaged in sexual intercourse with the perpetrator in the past, the offense does not qualify as a first-degree felony.

Even though the Federal Bureau of Investigation updated its definition of rape in 2013 to include “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim,” many states still do not include this definition in their own rape laws. In fact, only Tennessee, Oklahoma, Ohio, Washington, Kansas, and Indiana classify forced penetration with a foreign object as rape. Other states, including North Dakota, Minnesota, Wisconsin, and New Mexico, categorize forced penetration with a foreign object under different terms yet with equally severe punishmentssuch as “Criminal Sexual Penetration,” “Criminal Sexual Conduct,” and “Gross Sexual Assault.”

“A principal concern of reformers is to shift the focus of the offense from force to the absence of consent,” says New York University law professor Stephen J. Schulhofer, author of Unwanted Sex: The Culture of Intimidation and the Failure of Law and a leading advocate in the push to update Article 213. Schulhofer believes that one of the main obstacles in persuading lawmakers to create a more inclusive definition of rape will be “the need to convince [them] that penetration without consent is in itself a serious offense against the person, even when physical force is not used to compel the victim’s submission.”

In the case of Turner’s victim, we see clearly the importance of making consent the centerpiece of rape law: Since the victim was unconscious during the assault, Turner was only charged with sexual assault. If state laws emphasized absence of consent, then Turner’s victim (among countless others) would be able to see her rapist receive a stronger punishment.

Although Garcia’s petition already has 5,889 signers, and 15 legislators — both Democrat and Republican — have officially supported the proposed amendment, she and Eggman are bound to encounter hurdles in getting the state to amend Penal Code 261. Garcia says that “tight legislative deadlines” and “vetting through the policy concerns of the stakeholders” will be two challenges in passing AB 701.

Yet obstacles in reforming rape laws nationwide could dissolvenext May at the American Law Institute Annual Meeting, where members will vote on officially approving Schulhofer and fellow NYU law professor Erin Murphy’s proposal to include absence of consent in the definition of rape. The decision will ultimately compel states to re-examine their penal codes and initiate a path to reforming the way courts view rape.