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.