SB-967, deserves attention as an alarming example of creeping Big-Sisterism that seeks to legislate "correct" sex. While its reach affects only college students so far, the precedent is a dangerous and potentially far-reaching one.With all the other drama in the news, the likely passage of a California law ostensibly targeting sexual assault on college campuses—approved by the state Senate on May 29 and by the Assembly Judiciary Committee on June 18—has gone largely unnoticed. Yet the bill,
The bill, sponsored by state Senator Kevin De Leon (D-Los Angeles) and developed in collaboration with student activists, does nothing less than attempt to mandate the proper way to engage in sexual intimacy, at least if you're on a college campus. It requires schools that receive any state funds through student aid to use "affirmative consent" as the standard in evaluating sexual assault complaints in the campus disciplinary system. According to the bill:
"Affirmative consent" is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. Consent is informed, freely given, and voluntary. It is the responsibility of the person initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
The idea that "no means no" is not enough and consent requires an explicit "yes" has long been the dogma of feminist anti-rape activists. In the early 1990s, Ohio's super-progressive Antioch College was widely mocked for its code of student conduct that mandated verbal consent to each new level of intimacy. But despite the ridicule, sexual misconduct policies requiring clear, explicit agreement to specific acts continued to spread to campuses across the country.
In a Slate.com article defending "affirmative consent," feminist writer Amanda Hess stipulates that such laws should be "broad enough to include nonverbal cues." But that would leave fact-finders, in real courts or campus pseudo-courts, to try to decide such questions as: Was a head motion a nod that indicated a "yes"? Does pulling someone closer during an embrace amount to consent to sex? Does a passionate response to a kiss amount to a "nonverbal cue"?
Indeed, while many current campus codes do not absolutely require verbal consent, they strongly encourage it with warnings that "relying solely upon non-verbal communication" can lead to mistakes and misunderstandings. (The initial draft of the California bill contained such language as well.) With such rules, a college disciplinary panel evaluating a complaint is likely to err on the side of caution and treat only verbal agreement as sufficiently clear consent.
Student activists, aided by the social media, have also been conducting a reeducation campaign advocating for sexual consent. One might think sexual consent needs no advocacy; but, of course, this is not consent as traditionally understood. The norm this movement seeks to promote, according to a recent New York Times report, is to "ask first and ask often before engaging in sexual activity." Since the activists realize that this doesn't sound particularly appealing, they endeavor to "make consent cool" through various gimmicks: a website featuring a fictional line of Victoria's Secret lingerie decorated with slogans like "consent is sexy" and "ask first," giveaways of real condoms with similar mottoes ("ask before unwrapping"), and even, at Columbia University freshman orientation, candy prizes for "creative ideas" about negotiating consent.
To counter the common view that such negotiations are awkward moment-ruiners, the activists quoted in the Times argue that explicit consent can be "fun" and even ensure better sex through communication. Educational posters on the Columbia campus proclaim that "asking for consent can be as hot, creative, and as sexy as you make it."
With all these earnest reassurances, one can't help wondering if the consent evangelists really believe what they preach: The ladies (and their gentlemen allies) do protest too much. Moreover, their protestations are belied by the fact that the preaching is backed by undisguised coercion. In feminist educator Bernice Sandler's list of "Ten Reasons to Obtain Verbal Consent to Sex," the assertion that "many partners find it sexy to be asked, as sex progresses, if it's okay" is followed by "Because you won't be accused of rape" and "Because you won't go to jail or be expelled." Fun, fun, fun.
To say that sex without consent is rape is to state the obvious. But in traditional sexual scripts, consent is usually given through nonverbal cues. Of course this doesn't mean that people never talk during sex; but there's a big difference between sweet nothings and mandatory negotiations based on constant awareness that you may be raping your partner if you misread those cues. And "constant" is no exaggeration. Thus, the sexual assault policy at California's Occidental College states that "individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner" and that consent can be withdrawn through an explicit "no" or "an outward demonstration" of hesitation or uncertainty, in which case "sexual activity must cease immediately and all parties must obtain mutually expressed or clearly stated consent before continuing." Whether anyone could feel "sexy" under such conditions seems dubious at best.
The feminism of "affirmative consent" is equally dubious. Indeed, this standard arguably strips women of agency in a way that traditional sexual norms never did. In the traditional script, the man initiates while the woman decides where (or whether) to set the limits. Under explicit consent rules, the person taking the lead must also assume much of the responsibility for setting the limits by making sure his partner wants to proceed—while the more passive party cannot be responsible even for making her wishes known without being asked.
While these rules are technically gender-neutral, the general assumption in campus activism is that the victim of nonconsensual heterosexual sex is female. Indeed, if there was a sudden rush of male students filing such charges against women who had failed to "ask first," it's likely that the activists would respond the same way battered women's advocates did in the 1990s when their push for mandatory arrest in domestic violence cases led to more arrests of women: by crying backlash and claiming that male abusers are manipulating the system to punish their female victims.
Until now, "affirmative consent" policies have been voluntarily adopted by colleges (though within a context of federal law that requires schools to protect students from broadly defined sexual violence). The California bill with its government mandate represents an alarming new phase in this campaign, as well as another step toward a de facto presumption of guilt in campus sexual misconduct cases. It effectively shifts the burden of proof to the accused while also requiring colleges to use the lowest possible threshold—"preponderance of the evidence"—in assessing the validity of a complaint. In practice, this means that any minimally plausible charge is likely to be upheld.
One would think that the California legislators would have some second thoughts about endorsing a bill that essentially redefines some 95 percent of human sexual encounters as rape (including married sex, since the bill specifically states that a prior relationship creates no presumption of consent). Even the Los Angeles Times, usually strongly supportive of the anti-campus rape campaign, criticized SB-967 in an editorial noting that "it seems extremely difficult and extraordinarily intrusive to micromanage sex so closely."