Professor Deborah Tuerkheimer Advocates for Reform of Rape Laws

August 28, 2015

In recent years, campus sexual assault has increasingly been placed in the spotlight. Under direction from the White House, the Department of Education, and Congress, college campuses have become the main battleground where the war against rape and rape culture is waged. Over a thousand universities now have in effect “affirmative consent” standards, as activists have successfully advocated a shift from the traditional “no means no” standard to one where only “yes means yes.” Outside the confines of colleges and universities, however, progress lags far behind.

Northwestern Law Professor Deborah Tuerkheimer tells the New York Times Magazine in an August 26 article on the trial of Owen Labrie—the New Hampshire boarding school student accused of raping a freshman girl in 2014—that an insistence that “no means no” doesn’t typically reflect the legal reality. In most states, a finding of physical force is still required to convict a person of rape; that the victim said “no” isn’t enough.

Professor Deborah Tuerkheimer discussed the Owen Labrie case and what constitutes consent on the PBS NewsHour, August 28, 2015.

The force requirement is “woefully out of step with modern conceptions of sex,” Tuerkheimer argues in an article titled, “Rape On and Off Campus,” which will be published in the Emory Law Journal later this year. In the article, which is extensively discussed in the Times, she provides painful examples of the consequences of this legal failing. In one case, a man convicted of raping his daughter while she slept challenged his conviction for rape in the first degree by arguing “that the evidence could not sustain a finding of forcible compulsion,” since he desisted when she woke up. The appeals court agreed.

“On campus, this is rape; off campus, it often is not,” Tuerkheimer said of cases like these that don’t satisfy the legal definition of force.

“The insight that sex without consent is rape is true regardless of whether the non-consenting party is a college student: across educational status, rape ought to be properly defined,” Tuerkheimer has written. “Statutory reform in this direction would resolve many of the doctrinal tensions embedded in the cases. It would focus attention on the meaning of consent. It would conform to widespread norms surrounding sex. And it would bring into alignment the definitional treatment of rape on and off campus. For now, archaic understandings of female sexuality saturate the criminal law. Until this changes, the consent revolution will remain incomplete.”

Tuerkheimer is a participant in two American Law Institute Projects, one aimed at improving campus policies and procedures surrounding sexual and gender-based misconduct, and the other focused on reforming the Model Penal Code provisions on sexual assault.