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45 Cap. U. L. Rev. 765 (2017)
Equality Is Not Enough: The Importance of the Due Process Clause in Redefining Consent to a Sexual Encounter

handle is hein.journals/capulr45 and id is 791 raw text is: EQUALITY IS NOT ENOUGH: THE IMPORTANCE OF TIE DUE PROCESS CLAUSE IN REDEFINING CONSENT TO A SEXUAL ENCOUNTER CARLEY R. KRANSTUBER I. INTRODUCTION Consent is a pervasive concept, one that exists in ordinary language, morality, and law. For centuries, courts, legislatures, and legal minds have grappled with how consent should be understood in a legal context and where ambiguities lie in its interpretation.' Unfortunately, the law does not provide a single definition of consent that can be applied in all circumstances. Consent can be interpreted differently and used for a 2 variety of purposes depending on the context of the situation. Consent can range from a choice made only after full, free, and informed thought to a mere lack of dissent.3 It has applications in almost every area of law. Specifically, in the realm of criminal law, rape and sexual assault laws provide a proverbial breeding ground for conceptual and normative disputes about how a party consents to a sexual interaction, and whether that consent exists in a given set of circumstances.4 The Rape, Abuse, and Incest National Network (RAINN)5 published an article to assist potential victims in determining whether they had given consent to a sexual encounter.6 The article is simply entitled, Was I Raped?7 This is an outwardly strange question that a woman might ask Copyright 0 2017, Carley R. Kranstuber. J.D., magna cum laude, May 2017, Capital University Law School; B.A. with Honors in Political Science, June 2010, The Ohio State University. Thanks to my parents for their unconditional love and support, my dear friend Kitty Ivan for reminding me to take a break from studying and eat dinner, and Professor Scott Anderson for his expertise, guidance, and conversation on this fascinating and controversial topic. 1 Legal Role of Consent, RAPE, ABUSE, & INCEST NAT'L NETWORK, https://rainn.org/get- information/types-of-sexual-assault/was-it-rape [https://perma-cc/5AFX-HFMG] (formerly entitled, Was I Raped?). Zamet v. Hyman, [1961] 1 WLR 1442, 1444 (Lord Evershed). 4 Legal Role of Consent, supra note 1. RAINN is an anti-sexual violence organization that works to educate the public about sexual assault, improve services to victims, and bring rapists to justice. See RAPE, ABUSE, & INCEST NAT'L NETWORK, https://www.rainn.org [https://perma.cc/L768-D2VS], for more information. 6 Legal Role of Consent, supra note 1. 7d