Sex

'Affirmative Consent': The Sex Police on the Defensive

Even advocates aren't sure exactly what affirmative consent means or how it will work. What could go wrong?

|

Efforts to legislate "affirmative consent" as the standard for college disciplinary proceedings on sexual assault, which I discussed in my last column, continue to advance. The California bill requiring colleges and universities to adopt such a standard to qualify for state student aid, S.B. 967, was overwhelmingly approved by the State Assembly's Committee on Higher Education on June 24. And now, reports legal expert Hans Bader, similar measures may be coming on a federal level.  Sen. Claire McCaskill (D-MO), who leads the congressional crusade against campus rape, apparently supports a definition of sexual assault that includes any sexual activity without "explicit consent"; so does the federal Office on Violence Against Women.

While the bill has been criticized across the political spectrum as an intrusive and bizarre attempt to micromanage sexuality, its defenders are mobilizing as well. They claim that "affirmative consent" is meant simply to ensure that all sex is wanted sex and that its critics are either rape-loving misogynists or misguided folks confused about what this standard actually means.

So, how convincing are those defenses?

A rather strongly worded diatribe against "rape apologists"—and, specifically, yours truly—comes from firebrand feminist blogger Amanda Marcotte on RawStory.com. According to Marcotte, I am a "professional female misogynist" who thinks that women "exist in a state of consent all the time" unless they explicitly say "no." Of course, what I actually wrote was that consent is usually given through nonverbal cues—often, especially in first-time sex, in a gradual buildup of physical contact. A woman who gives an affectionate hug in the context of a non-sexual relationship is certainly not consenting to having her breasts groped (and such an act would indeed amount to sexual assault). On the other hand, fondling a woman's breasts after an interlude of passionate kissing and touching is a normal progression of intimacy, and it's commonly accepted that it's up to the woman to object if she'd rather not move on to that level. Obviously, the same applies if the recipient of sexual touching is a man.

Marcotte, who insists that "explicit" consent need not be verbal, thinks she has caught the "anti-feminists" in a hypocritical inconsistency: asserting that consent can be signaled nonverbally while demanding a clear verbal statement of non-consent. But no one would deny that, for instance, silently removing a man's hand from where you don't want it amounts to a "no." The question is how clear non-verbal signals must be. A male college student who starts pawing a female classmate during a dorm room study session because he reads seductive intent into the way she flipped her hair or shifted her body would not qualify for much sympathy if he got in trouble. Neither should a female student who complains that her partner didn't stop when she "stiffened"—Marcotte's example—in the midst of consensual kissing and touching.

Hardly anyone would dispute that sexual assault can occur without any expression of non-consent—not only when the victim is unconscious or severely disoriented, but when the situation is inherently frightening even without an overt threat. The California Supreme Court upheld a rape conviction in such a case two decades ago in People v. Iniguez. The victim in that case was staying overnight at her aunt's place; she was awakened by the approach of the aunt's drunken boyfriend and lay frozen in shock and fear while he forced himself on her.  But proponents of "affirmative consent" typically focus on far more ambiguous situations.

Marcotte also offers this charming scenario to illustrate the supposed absurdity of applying my reasoning to non-sexual social interactions:

If I, say, go to Cathy Young's house and walk in without knocking and sit on her couch and fart mightily into it while asking her if she could grab me a beer, she can't, you know, throw a fit, right?  I mean, she didn't say no—in part because she had no idea I was coming, but you know, details—and we don't want to be Big Sister who is all bossing me around about the "correct" way to socialize.

Actually, home invasion is an excellent analogy. Of course you cannot walk into a stranger's home without knocking, even if the door is open. However, if a friend decides to pay me a surprise visit, rings the doorbell and announces herself without explicitly asking "May I come in?", and I stand by and let her enter, I can hardly file charges later on—even if I looked less than thrilled and half-heartedly mumbled that I'm really busy. Likewise, if the owner or occupant of a residence asks you to leave and you refuse, this legally qualifies as trespassing. But no sane person would extend this to a guest who disregards polite hints that she has overstayed her welcome.  Being pushy and socially clueless is not a crime, and adults are generally expected to deal with such annoyances without help from the authorities—unless the obnoxious behavior rises to a threatening level.

More level-headedly, Tara Culp-Ressler, who covers "rape culture" for the leftist website ThinkProgress.org, concedes that there are "legitimate questions" about whether legislation is the best way to promote affirmative consent. However, she argues, "much of the hyperbolic concern over turning students into rapists and taking the fun out of sex stems from a misunderstanding about how affirmative consent actually operates in practice."

And how does it operate? Culp-Ressler quotes some New Agey rhetoric from feminist writer Jaclyn Friedman about "enthusiastic consent" being a constant state like the water in which you swim. In a way, this isn't particularly radical; contrary to what Culp-Ressler implies, our culture's standard "script" for sex is based on mutual enthusiastic participation, not reluctant compliance. (Just think of any sex scene from a movie, TV show, or book.) But it's also based on spontaneous give-and-take. By contrast, says Culp-Ressler, affirmative consent requires "both partners … to pay more attention to whether they're feeling enthusiastic about the sexual experience they're having." Most people are likely to see this as a prescription for overthinking and self-consciousness, not "better communication"; but to each their own. The problem is that the "affirmative consent" message is currently being preached through both practical and moral intimidation: the fear of penalties and the fear that you may become an accidental rapist.

While Culp-Ressler allows that affirmative consent is "a departure from the way our society often approaches sex," she thinks concerns about it are much ado about nothing. After all, she observes, if a student starts kissing his girlfriend without an explicit go-ahead, or a couple moves from foreplay to intercourse without prior verbal agreement, "those hypothetical situations aren't necessarily breaches of an affirmative consent standard." Aren't necessarily? So Culp-Ressler herself isn't sure whether the policy she is defending criminalizes most human sexual interaction? Well, worry not: "If both partners were enthusiastic about the sexual encounter, there will be no reason for anyone to report a rape later." And what if someone starts to feel ambivalent about a sexual encounter after the fact and reinterprets it as nonconsensual—especially after being repeatedly told that only an explicit, clear and sober "yes" is real consent? Culp-Ressler ignores this possibility, reiterating the usual mantras about the rarity of false accusations.

Culp-Ressler's other defense of the affirmative consent legislation is that it's no big deal because such policies are already common on college campuses (a fact I noted in my last column). But that's not very reassuring, given that, as Bader points out, these policies have led to a number of instances of male students being expelled for apparently consensual sex.

Still less reassuringly, Culp-Ressler points to the recent Yale memo that attempted to clarify the definition of nonconsensual sex with hypotheticals—some of which involved penalties for misreading minute cues. Thus, "Ansley" rebuffs "Devin's" attempt to escalate things during consensual petting, saying, "Not so fast—I'm not sure"; Devin backs off but tries again later, at which point Ansley makes no objection but "inches backward" and "lies still" during sex. (According to Yale officials, such a complaint would lead to a lengthy suspension or expulsion.) In a particularly absurd vignette, "Kai" starts to reciprocate a sexual act without looking to "Morgan" for a nod signaling a clear go-ahead—an offense deemed worthy of a reprimand, even if Kai stops immediately when Morgan asks.

In the end, Culp-Ressler's argument boils down to this: A rule so murky that even its advocates aren't sure exactly what it means or how it will work, and which allows virtually any sexual encounter to be reclassified as a violation after the fact, is not a problem because people can be trusted not to abuse it. What could possibly go wrong?

This article originally appeared on Real Clear Politics.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

41 responses to “'Affirmative Consent': The Sex Police on the Defensive

  1. First, you must pass the bill in order to see what the rules are.

    1. And then we’ll change them whenever we want to.

      That’s the way the Progressive Theocracy rolls.

      1. Top people will decide how to interpret the rules.

  2. Alt-text for the win!

  3. “OK, honey, just sign here, and here, and initial here…”

    1. “Oh, that paragraph? That’s just standard boilerplate…no need to read it, it’s kind of technical…”

    2. OK, honey, just sign here, and here, and initial here, no, a little lower, oh yeah, right there.

    3. There’s a great video explaining this:
      https://www.youtube.com/watch?v=Q-gu6s0eGOk

    4. It’s almost like these rules are written by people that have never had sex.

  4. Cathy Young =
    Rape Apologist, Professional Female Misogynist, Sister-Punisher and Conservative Shamer, Silencer, and Disturber of Concerned People

    I think Cathy deserves a special award for ‘most ridiculously reviled Reason writer for simply failing to parrot the party line of a militant, victim-cult minority.

    I once tried posting a question in the Raw Story threads there. I got ‘banned’ within the second attempt. No incendiary comments, no inappropriate language, nothing even remotely ad hom or anything… just ‘wrongthink’. They maintain that their POV is somehow complete universal common sense and unassailable… yet can’t even tolerate the slightest questioning of their assumptions.

    In particular – i’d asked, “do you really think that the california ‘affirmative consent’ is as benign an unproblematic as you make it?

    (they were claiming, “What about CONSENT is so hard to understand!?!)

    Half of it I accept as part of the modern-day ‘clickbait journalism’, where by default, blog posts MUST be hyperbolic, extremist claims to garnish the attention, commentary, and circulation to burnish your blog-cred.

    The other half is just batshit crazy-stupid

    1. Just think of any sex scene from a movie, TV show, or book.

      Can I revile her for this line?

      What a horrible way to invoke common perception!

      Lest Shawshank Redemption, Pulp Fiction, Law & Order, GOT, True Blood, 50 Shades of Gray or w/e fit the description of ‘any’.

      “Just think of any sex scene from a romantic comedy.” sounds more like the intended common experience.

      1. But it is clear to most people which of those scenes are consensual and which are not.

    2. Hey, I got banned there also. I came back at some Lib who was giving me crap and the mod said that I would be out of there if I kept that up. I responded with 6 or 7 quotes of the personal attacks that were being directed toward me and said that if that was the selective moderation I could expect I would leave on my own. He wrote me at my e-mail and said he had banned me anyway.

      That place is a virtual primate zoo.

      Anyway, this law will make it nearly mandatory that every sexual encounter be audio or video taped for the protection of all parties.

      Then again, it is unlawful to audio or video tape anyone.

      So the best solution is for the girls to cuddle up to their vibrator and the guys to start dating Old Mother Thumb and her four daughters.

  5. What is this crap? If most sexual encounters take place in private, then it is always “he said, she said.” Affirmative consent? “Well she said to me ‘please fuck me’ so I did.” What is the evidence that she didn’t say that?

    1. You’re male; that’s all the evidence the colleges need, anyway.

    2. What is the evidence that she didn’t say that?

      You assume the burden of proof is on the accuser.

      You assume . . . poorly. You need to prove that she did give “affirmative” consent. And the only way to even start down that road (in the face of her denial) is to have it in writing.

      1. Or, on videotape. Really, the only safe thing for a male to do is videotape all sexual activity.

        1. Okay, I’d have to see a video of him singing “Pee On You,” two forms of government ID, a police officer there to verify the whole thing, four or five of my buddies and Neal taking notes, and R. Kelly’s grandma to confirm his identity.

          1. “Okay, I’d have to see a video of him singing “Pee On You,” “?
            Oh, My, Government almighty! That reminds me of 50,000 years or so ago, when I was a MUCH younger fart smeller, in high school, & I used to go around, and say, fiercely, sternly, to random pepples. “Ah haz had ENUFF of yer shit!” ? Then I would lean in, suggestively, seductively, and say, Wink, wink, “An’ now, Ah would like some of yer PISS!” More often than not, AH wuz treated to a DELICIOUS “golden shower”, if the principal & the teachers warn’t a-lookin’? Tales of my mis-spent youth?

      2. How would we know she *really* consented to what she wrote?

      3. That won’t work either. She’ll claim that’s not her handwriting, even if 10 experts certify that it is. Besides, she felt coerced by the patriarchy to consent, so her signature was invalid. Besides, she was too drunk to read it and she thought she was consenting to him giving her a new car.

    3. So do the regulations deal with the boy-on-boy or girl-on-girl deal? If so, how do they decide who the rapee is?

      1. Whoever “initiated” sex.

        Is it a whisper in the ear? Holding hands? Touching a thigh? Groping a crotch?

        I wonder, does initiation only occur once in an encounter? Or is it another of those “continual” things, each new “initiation of sex” producing another chance to be a rapist, so that any encounter can make both persons involved rapists/victims multiple times over?

        1. It’s smooth like the water you swim in. What can be more clear than that?

  6. Is it really so fucking hard to say “no” or “stop” if you don’t like what is happening?

    1. ” Velvet Page Guest ? 5 days ago

      You just perfectly defined rape culture. It’s up to the victim to prevent rape, not the perpetrator to NOT RAPE.

      Kittehserf Datte Hakamura ? 5 days ago

      Flagged for incredible and rapey obtuseness and ableism.

    2. Rape is the worst thing in the world.

      Well, except for clearly saying “no”.

      Much better to enlist all of society to capture, cage, torture, and perhaps murder the person you couldn’t be bothered to say “no” to.

      1. …couldn’t be bothered to say “no” to, to avoid the second worst thing in the world.

        1. Hey she stiffened momentarily, shuddered, and began to move from side to side a bit. Of course that was clear body language saying no. She realized that after she heard her professor’s lecture a month later.

  7. “This law is really about the ‘pacification of men’

    Opposition to this law resists the ‘pacification of men’

    Therefore, there is no logical opposition to this law”

    – Rough summary of rabid fans of this law, none of whom seem to understand what it actually is.

  8. the rarity of false accusations.

    Please.

  9. Since rape is actually a crime, prosecutors wouldn’t really require a complaint from a “victim”. If a *crime* occurs, the government is authorized and expected to punish it regardless of the wishes of the “victim”.

    The drunk or stoned can hardly give “consent”. Or the medicated. All sex while high is mutual rape, to be punished by the State. You thought it was ok to get liquored up at your wedding and screw? Think again! Rapist! Rapist lover! Rapist Marrier! What kind of animal are you, marrying a rapist? Oh, that’s right, you’re the Rapist kind of animal!

    And I think S&M just got a lot more problematic. Hard to give that continual consent hogtied with a ballgag in your mouth. Really, since “enthusiastic, continual consent” can hardly be given when one is so tied up that way, wouldn’t all S&M gear actually be Rape Gear, so that anyone buying it shows intent to Rape, and anyone selling is part of a conspiracy to Rape?

    Detroit! Kidnapper Enablers! They even have “passive constraint” seat belts, where you have no *choice* at all whether to be strapped into the Kidnapper Mobile.

    And what about selling alcohol? Or drugs? Or caffeine? Or oysters? Rape Conspirators!

    1. (Stupid comment size limit. Last two paragraphs should have been cut and paste later here.)

      Will we be applying this standard of consent to *all* human interaction? If I’m driving you to the store, say “I want to get something in the drive through at Taco Bell first”, you grunt “whatever”, and I proceed to drive to Taco Bell, am I now guilty of the *crime* of kidnapping? “Whatever” doesn’t sound very enthusiastic, now does it? And unless you keep muttering “whatever” all the way to Taco Bell, it doesn’t really matter, because even supposing “whatever” amounted to consent (Kidnapper Apologist!), that “consent” wasn’t continual.

      Detroit! Kidnapper Enablers! They even have “passive constraint” seat belts, where you have no *choice* at all whether to be strapped into the Kidnapper Mobile.

      And what about selling alcohol? Or drugs? Or caffeine? Or oysters? Rape Conspirators!

      Lots of people need to be put prison.

      Which is actually the point of the Left’s continual attack on the concept of consent. Destroy the concept, and we’re all coercive criminals, so all those damned Libertarians can stop their whining about coercion – Life is Coercion, and the Progressive Theocracy needs to get to deciding how exactly to control/punish all of us for the original sin of being alive.

      The End.

    2. What sort of sicko would even be aroused by sober sex? It’s like leaving the lights on, just perverse.

  10. I cannot fucking wait until a woman is held accountable by a male ‘victim’ under this stupid fucking law.

    1. FWIW, I don’t rape or assault.

      However, I’m just going to make sure I have consumed alcohol before any sexual encounter. Thus I’ll be unable to consent, and have a countersuit to any BS claim under the new sex police regime.

  11. Gee, this is so very simple. We just need to pass a law saying that we’ll never regret any choice we ever make!

    1. How would that allow a woman to ruin some man’s life because he turned out not to be the person she wanted him to be? After all, she shouldn’t have to regret any choices she made, no matter what the cost to someone else.
      It’s all about empowering women…at the expense of men.

  12. …she “stiffened”?Marcotte’s example?in the midst of consensual kissing and touching.

    Some women can get off from just kissing and touching? Where do you meet them?

  13. “women “exist in a state of consent all the time” unless they explicitly say “no.””

    Actually this is the state of play for any male in a heterosexual interaction. This applies even to boys when the other party is an adult woman.

Please to post comments

Comments are closed.