Has Virginia Just Become a “Yes Means Yes” State?
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: firstname.lastname@example.org
In early 2017, R.W. and her husband were staying with Robinson and his girlfriend in a house owned by the girlfriend. (According to the opinion, R.W. and her husband had nowhere else to stay). On the afternoon of May 23, R.W. and her sister returned to the house from an outing. R.W. had to knock on the door because the door was locked. Robinson answered the door and indicated that R.W. had awakened him. She apologized and walked into the house. Robinson immediately grabbed her breasts and twisted them. She told him to let go of her, but he persisted in holding her breasts for perhaps as long as a minute. When R.W. finally smacked his hands away, R.W. patted her buttocks.
Robinson was charged and convicted of sexual battery under Va. Code §18.2-67.4(A)(i). That provision makes it a crime to sexually abuse “the complaining witness against the will of the complaining witness by force, threat, intimidation, or ruse.” Both parties agreed that Robinson sexually abused R.W. by touching her “intimate parts” against her will and that the act was done without the consent of R.W. The issue in the case was whether Robinson used force to bring about the nonconsensual touching (as the trial judge had ruled).
Robinson appealed his conviction to the Virginia Court of Appeals, where a 3-judge panel reversed his conviction. The prosecution petitioned the Court to re-hear the case en banc, and the petition was granted. When the Court of Appeals grants a petition to re-hear a case en banc, the panel decision is vacated, and the case is decided by the full court (usually eleven judges, but in this case, ten, because the Court was not at full strength).
Robinson argued that the prosecution did not prove the force element of the crime because “there was no evidence that the alleged touching was accomplished by the use of force sufficient to overcome the victim’s will.” The trial judge ruled that the force requirement was satisfied by proof that Robinson “grabbed [R.W.’s] breasts right behind [her] nipples and twisted as hard as he could.”
Robinson’s argument relied primarily on two Virginia precedents – Woodard v. Commonwealth and Johnson v. Commonwealth. In Woodard, the defendant squeezed the victim’s breasts and grabbed her between the legs when she declined his offer to go out with her. On appeal, the Court of Appeals confined its decision to whether the sexual abuse of the victim had been accomplished by intimidation, because the trial judge had made an explicit factual finding that force was not involved. The Court overturned Woodard’s conviction, holding that the sexual abuse was the product of surprise, not intimidation. In Robinson, the en banc Court concluded that Woodard was not relevant because it did not deal with the force issue (the issue before the Court in Robinson).
In the other case relied upon by Robinson (Johnson), the defendant lay down on a bed behind the victim, a 14-year-old boy. Johnson put his arm around the boy while he fondled the boy’s genitals and buttocks. At one point, the boy tried to get up, and Johnson pushed him back down on the bed. The Court of Appeals reversed Johnson’s conviction, holding that “[s]ome force other than merely that force required to accomplish the unlawful touching” must be shown. The Court held that any force used by Johnson was not used to overcome his victim’s will. The Court contrasted the facts in Johnson with the facts in Haynes v. Commonwealth, where the Court held that by holding the victim’s hands behind her back while touching her vagina without the victim’s consent, Haynes used force to overcome the victim’s will.
In his dissent in the panel decision in Robinson, Judge Beales distinguished Johnson from the Robinson case by noting that “[t]he victim, by smacking away [the defendant’s] hands and telling him to ‘get off of her’ not only demonstrated her lack of consent, which was not in dispute, but also conveyed that he was using such force that she could not immediately break away and that her will was overcome.” The majority in the en banc decision took a different approach, however (even though Judge Beales wrote that opinion also). Rather than try to divine some relatively minor difference between the facts in Johnson and Robinson that would permit the Court to disregard the decision in favor of Johnson in that case (as Judge Beales had done in his panel dissent), the Court exercised its discretion as an en banc court to overrule Johnson on the basis that the case was wrongly decided. The en banc Court held that the court should have found sufficient force in Johnson, because of the victim’s testimony that Johnson “woke me up and was holding me real close to him” as he was fondling the victim. (Emphasis added by the Court in Robinson).
Having disposed of the two cases upon which Robinson had based his appeal, the Court turned to the facts in Robinson. It spent very little time carefully examining the facts. Instead, the Court simply concluded that “a rational fact finder could conclude that Robinson accomplished the touching ‘by force’ because not only did he touch or grab the victim’s breasts but he also ‘twisted as hard as he could’ – and held on to her in that manner for about a minute, according to the victim’s sister.” What is absent from the Court’s description of its holding is any discussion of whether this force was used to overcome R.W.’s will, also required by the Code section.
The three dissenting judges in Robinson were disturbed by this holding, primarily because they perceived the decision as usurping the role of the legislature. The dissenters suggested that the result of overturning Johnson is to make “any non-consensual touching of an intimate body part … sufficient force to overcome a victim’s will.” What’s more, if the legislature was displeased with the approach taken by the Court in Johnson, “it certainly had the opportunity to correct us.” This comment makes it clear that the judges in this case must have understood that its decision was, for all intents and purposes, eliminating the requirement that the prosecution prove, in sexual battery cases, more force than was inherent in the sexual act itself. All non-consensual sexual battery is criminal.
Of course, Robinson was a sexual battery case, not a rape case. However, it is difficult to see how its apparent ruling that all non-consensual sexual touching is sexual battery would not extend to rape cases as well. As in the sexual battery statute at issue in Robinson, Virginia’s rape statute prohibits sexual intercourse with a complaining witness “against the complaining witness's will, by force, threat or intimidation.” It is that language that was at the heart of the Robinson decision. There is no reasonable basis for not extending the reason of Robinson to Virginia’s rape statute also.
One can understand the Court’s desire to adopt an approach where all the prosecution must prove in a sexual assault case is that the victim did not consent to the sex. The Court’s decisions in Clark v. Commonwealth and Kanczuzewski v. Commonwealth are instructive. In Clark, the Court found that “the defendant’s act of lying on top of a victim was more force than necessary to accomplish the unlawful act of touching her intimate parts.” Similarly, in Kanczuzewski, the Court found that “grabbing” the victim prior to the sexual assault was “more than the force required to accomplish the unlawful touching.” It would be splitting hairs in the extreme to conclude that there was a sexual assault in Clark and Kanczuzewski but not in Robinson.
If the decision of the Court of Appeals is indeed to criminalize all non-consensual sex, that would be consistent with the modern trend in the law of sexual assault. In the last 20-30 years, there has been a reformist movement in the criminal law of sexual assault to focus liability on whether there was consent to the sex, rather than to focus on whether force was used to overcome a victim’s will to resist. The new consent-based approach has taken two forms – what have come to be known as “no means no” or “yes means yes” approaches. Deborah Tuerkheimer describes the difference between the two approaches this way: “At their core, affirmative consent standards [“yes means yes”] require some outward manifestation of a willingness to engage in sexual activity, as opposed to simply an expression of unwillingness, or no indication one way or another [“no means no”].”
As many as 1400 colleges and universities have adopted “yes means yes” standards as part of their student codes of conduct. These codes provide additional insight into what is meant by “yes means yes.” For example, Yale University’s definition of consent requires “positive, unambiguous, voluntary agreement at every point during a sexual encounter – the presence of an unequivocal ‘yes’ (verbal or otherwise), not just the absence of a ‘no.’” Although the use of “yes means yes” standards have become ubiquitous in college student conduct codes, their adoption in state criminal codes has been less prevalent.
Where does the Robinson case place Virginia? If the dissenters are correct in their assessment, Virginia has crossed over to a consent-based approach to sexual assault, but does it represent a “no means no” or a “yes means yes” standard? It is virtually impossible to answer that question on the basis of the opinions in Robinson. The judges in the majority would, in all likelihood, deny that they have eliminated force as an element of proof in sexual assault cases. Their stated conclusion is that “a rational fact finder could conclude that Robinson accomplished the touching [of R.W.] ‘by force’” because he held R.W.’s breasts and twisted them. The dissenters’ contention, however, is that the majority opinion dispenses with the need to show that the force was used to overcome R.W.’s will to resist Robinson’s sexual intentions. The result is that the government, as a practical matter, need only prove that R.W. did not consent. Since R.W. made it clear that she was not consenting to sex with Robinson when she “smacked his hands away,” it would appear that Robinson would be guilty under either a “no means no” or a “yes means yes” approach.
A consent-based approach to sexual assault has its critics, of course. The affirmative consent approach (“yes means yes”) has been criticized because it purports to bring clarity to encounters that are “hopelessly confusing and ambiguous.” It has also been criticized for “detract[ing] from the spontaneity of sexual encounters,” resulting in “diminished sexual pleasure, or the greater awkwardness that will result from communication around sex.” Whether Virginia courts have adopted a consent-based approach to sexual battery and, if so, whether it will apply that approach to all sex offenses will require the resolution of more cases raising those issues.
NOTE: A petition for appeal to the Virginia Supreme Court has been filed by the state in the Robinson case. As of December 2019, the Court had not acted on the petition. The Virginia Supreme Court frequently declines to grant petitions for appeal in criminal cases. For example, in 2017, the Court granted 23 petitions for appeal in criminal cases, while denying 708 petitions. Nevertheless, the decision in Robinson deals with an issue of such great significance that the chances that the Virginia Supreme Court will grant the state’s petition in that case would appear to be significant.
 828 S.E2d 269 (2019).
 499 S.E.2d 557 (Va.Ct.App. 1998).
 365 S.E.2d 237 (Va.Ct.App. 1988).
 1999 Va. App. LEXIS 557 (1999). Haynes was an unpublished opinion. Unpublished opinions are not binding precedents, but courts may cite them for their persuasive value.
 517 S.E.2d 260 (1999).
 2009 Va. App. LEXIS 93 (2009). This is another unpublished opinion. See footnote 4.
 Quote is taken from the panel decision in Robinson.
 This quote is also taken from the panel decision in Robinson.
 Deborah Tuerkheimer, “Affirmative Consent,” Ohio State Journal of Criminal Law, Vol. 13, No. 2 (2016); Deborah Tuerkheimer, “Rapen On and Off Campus,” Emory Law Journal, Vol. 65, No. 1 (2015); Judith Shulevitz, “Regulating Sex,” The New York Times, June 27, 2015 (https://www.nytimes.com/2015/06/28/opinion/sunday/judith-shulevitz-regulating-sex.html?_r=0).
 “Affirmative Consent,” p. 442.
 Somewhat surprisingly, the majority opinion in Robinson does not address the contention of the dissenters that its opinion adopts a consent-based approach to sexual assault.
 “Rape On and Off Campus,” p. 12.
 Id., pp. 12-13.