THE CANADIAN AFFIRMATIVE CONSENT MODEL AS A GUIDE FOR RETHINKING CURRENT U.S. STATUTORY TREATMENT OF VOLUNTARY INTOXICATION SEXUAL ASSAULTS

Abstract

Current U.S. statutory treatment of voluntary intoxication sexual assault is convoluted by the disconnect between definitions of consent, treatment of voluntary intoxication, and mens rea standards. Within this disconnect, the general public in many states are left largely unprotected when they become voluntarily intoxicated, such as through voluntary drinking. Being that voluntary intoxication is a highly socialized activity, and one that is prevalent across the nation, the need for reform that better protects against sexual assault is necessary. I argue that the Canadian affirmative consent model addresses these gaps in U.S. statutory law. The Canadian affirmative consent model provides a clear definition that recenters the conversation to consent, eliminates subjective evidence, sets a clear mens rea standard, provides protection across the intoxication spectrum and challenges dated sexual scripts. While changes to statutory law are most needed in politically conservative states, it may be more practical to first implement the standard in liberal states, where data can be collected to convince hesitant state legislators to pass the Canadian affirmative consent standard.