California's Absurd Intervention Over Dorm Room Sex
Legislators and activists just don't trust adults to navigate issues of consent without them.
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, 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.
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."
At a March 20 hearing before the Senate Education Committee, Denver-based attorney and school safety advocate Ann Mitchell, a Stanford Law School graduate who has practiced in California for most of her career, testified in opposition to the bill as currently formulated, warning that its "vague, ambiguous, and overbroad" language "exposes students—not just men, but women as well—to misguided, and even specious charges."
In the discussion that followed, a few lawmakers, such as Republican State Sen. Bob Huff, voiced cautious misgivings. The comments from Sen. Lori Hancock, Democrat from Berkeley (found at 1:09 in the video of the hearing), provide a rather stark demonstration of both the ideological zealotry and the moral intimidation underlying this bill. While Sen. Hancock at first claimed to appreciate the complexities raised by Sen. Huff, this turned out to be pure sarcasm. "It's probably hard to be a guy when you think you're just doing what guys, culturally, are allowed to do—push a woman around a little bit, whatever," Sen. Hancock remarked with a snide chuckle. "I think what we're talking about here is a profound cultural shift which needs to happen."
Most of the other committee members limited themselves to platitudes about the courage of survivors and the importance of preventing sexual assault, without addressing the bill's radical nature. In his own concluding comments, Sen. De Leon seemed to suggest that "affirmative consent" meant simply that the lack of a "no" could not be a defense to a sexual assault on an unconscious woman—which is, of course, already part of the definition of rape in the courts and not just on college campuses.
In subsequent amendments, some of SB-967's more extreme sex-policing language—including the warning against relying on nonverbal communication and the admonishment to stop for a safety check if any ambiguity seems to arise—was removed. But in its current form, the bill still brings the government into the bedroom in a far more drastic and coercive way than abortion regulations. Meanwhile, as civil rights attorney Hans Bader has pointed out, it would do little if anything to help actual victims of sexual assault: a rapist who intentionally forces himself on a woman could simply lie that she gave her explicit consent.
Where this is going next is anyone's guess. Perhaps there will be a push to bring similar reforms to criminal law: after all, why should sexual assault on college campuses be defined differently than in the real world? Or perhaps the activists will decide that "yes means yes" is not enough, either. In fact, that's happening already. A list of clarifications about consent on some campus posters stipulates that "if they don't feel free to say 'no,' it's not consent" (meaning that at least in theory even explicit verbal agreement can be invalidated). And a new campus campaign in Canada warns that "if it's not loud and clear, it's not consent—it's sexual assault," using posters with the words "fine," "okay," and "sure" in tiny print to make the point that consent expressed in a "muted" or "uncertain" doesn't count. Perhaps they can tell us the proper decibel level for a "Yes."
Or perhaps we can come to our collective senses, stop the moral panic, and realize that someone is indeed pushing us around. And, in this instance, it isn't male Republicans.
An earlier version of this column appeared on RealClearPolitics.com.