Newswise — (Nov.6, 2017) — American law has long criminalized rape and other forms of sexual assault. In recent decades definitions of such crimes have been expanded, mostly providing greater protections for victims who testify they were subjected to non-consensual sex. This trend has even found its way into popular culture with the catch phrase “no means no.”

Some reform advocates contend that the essence of sexual assault is engaging in sexual activity without “affirmative consent.” They contend it is inappropriate to require a person to say “no” (verbally or physically) to sex. Instead, the initiator should obtain an affirmative consent – and silence, in and of itself, does not demonstrate consent. The reformers arguing for “yes means yes” have had a great deal of success in influencing disciplinary standards on college campuses, but with respect to the criminal law, the influence has been much less.

Critics of the proposed expansion have argued that it broadly criminalizes sexual activity commonplace in our society, turning normal human interactions into crimes. Moreover, while securing “affirmative consent” may seem straightforward in theory, in practice a whole host of questions arise. Does consent have to be verbal or are nonverbal cues sufficient? Does use of alcohol by one or both participants vitiate consent? Which party to the sexual encounter must secure consent – or do both need to do so?

The University of Utah on Nov.7 will host two of the nation’s leading experts — Jed Rubenfeld and Deborah Tuerkheimer —  to explore this evolving and timely topic for the S.J. Quinney College of Law's 34th Annual Jefferson Fordham Debate.   The debate will be hosted by University of Utah S.J. Quinney College of Law Professor Paul Cassell .   The event will be held at 6 p.m. on the sixth floor of the law school building, 383 South University Street, in Salt Lake City. It will also be live streamed on the college’s YouTube page:

The Fordham Debate is named in honor of Professor Jefferson B. Fordham, an outstanding legal scholar and defender of individual and civil rights who joined the University of Utah College of Law faculty in 1972. The annual debate addresses relevant contemporary public policy and legal issues.

Jed Rubenfeld, Robert R. Slaughter Professor of Law, Yale Law School Arguing the negative is Jed Rubenfeld, the Robert R. Slaughter Professor of Law at Yale Law School. Professor Rubenfeld received his A.B. from Princeton and his J.D. from Harvard. He teaches and write in diverse areas, including criminal law, constitutional law, and privacy.  His recent books include Freedom and Time and Revolution by Judiciary: The Structure of American Constitutional Law. Professor Rubenfeld is also the author of a widely-read op-ed piece in the New York Times, entitled “Mishandling Rape,” about consent issues surrounding sexual assault and affirmative consent on college campuses, and an important article in the Yale Law Journal, “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy.”

Read Rubenfeld’s related op-ed in The New York Times.

Deborah Tuerkheimer, Professor of Law, Pritzker School of Law, Northwestern University Arguing the affirmative is Northwestern law professor Deborah Tuerkheimer. Professor Tuerkheimer received her B.A. from Harvard College and her J.D. from Yale. She teaches and writes in the areas of criminal law, evidence, and feminist legal theory.  She is a co-author of the casebook Feminist Jurisprudence: Cases and Materials and the author of numerous articles on rape and domestic violence. She also served for five years as an Assistant District Attorney in the New York County District Attorney’s Office, where she specialized in domestic violence prosecution. Tuerkheimer was recently elected to the American Law Institute in 2015, a select group of lawyers that are currently considering revisions to the Model Penal Code previously mentioned.


*Free parking is available at the Rice-Eccles Stadium. We encourage you to use public transportation to our events. Take TRAX University line to the Stadium stop and walk a half block north. For other public transit options use UTA’s Trip Planner. The law school is on the Red Route for the University’s free campus shuttles (College of Law stop).