As calls to "end" campus rape reach a fever pitch, I want to highlight a few recent pieces on sexual consent from around the web. California is currently considering "affirmative consent" legislation that would create a separate definition of rape for college students, one in which the absense of "affirmative, conscious, and voluntary" (though not necessarily verbal) agreement to proceed at each step of sexual activity would be considered assault.
One of the biggest areas of controversy in the legislation is a section concerning consent and intoxication. "In the evaluation of complaints in the disciplinary process," the bill states, "it shall not be a valid excuse that the accused believed that the complainant affirmatively consented…if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity" because of incapacitation "due to the influence of drugs, alcohol, or medication." Many have pointed out that this standard is awfully vague, leaving much room for discretion in what constitutes too incapacitated to consent.
Megan McArdle suggests that this is a feature, not a bug, for those pushing affirmative-consent policies:
Prosecutors, and regulators more generally, like vague standards that are impossible to enforce consistently. It gives them a great deal of discretion in whom they target and how. It is a threat that can be wielded to force pleas to lesser crimes or other "voluntary" actions that obviate the need for a messy trial they might lose.
If university administrators moved to an affirmative-consent standard by themselves, parents and alumni, particularly the parents of sons, might complain. But if lawmakers force them to it … well, it's another weapon in the arsenal that allows them to target men who, say, generate too many plausible but impossible-to-prove complaints. The part of me that was a potentially vulnerable college woman understands the desire. But the part of me that is suspicious of authorities with broad and vague powers nonetheless thinks we should look for a better way.
At Bustle, Pamela Stubbart considers a sexual assault case from Occidental College and articulates something that's long bothered me about the affirmative consent movement: If drunk people can't give consent, how can they perceive consent?
Everyone understands the intuition that a policy (and more importantly, a real culture) of meaningful consent helps to protect incapacitated people from non-incapacitated (or less-incapacitated) potential assailants. But when both parties in a sexual encounter are (by their own admissions) blackout drunk…it doesn't take a trained philosopher to point out the underlying principle: if fall-down, blackout drunkenness really does incapacitate someone morally and relieve them of responsibility for their actions, for consistency's sake that must count both for ability to give consent and ability to perceive it. The burden might be reasonably placed on the clear initiator to prove that he or she was drunk, but in the Occidental case, neither Jane nor John Doe denies that both were as drunk as can be.
Fortunately, rapists do not get themselves blackout drunk and then go out planning to rape people and "get away with it." When both people are that drunk, and equally drunk, it's usually the result of a voluntary (if ill-advised) organic social situation. Here's the reality of the matter, which is kind of both good and bad news: rape is not some kind of mutual poor decision or drunken accident (which would make it easier to educate or engineer away). Instead, there really are men who prey on women sexually, often by getting them drunk.
Affirmative consent legislation suggests that misinterpreation of consent is a major root of sexual violence. But most rapes are committed by repeat offenders with calculated agendas, not students confused about whether the absense of a 'no' means 'yes'.
"Given the horrors of sexual assault, the desire to do something is powerful and totally understandable," writes Freddie de Boer. "But the establishment of explicit consent policies strikes me as a perfect example of the flawed thinking of 'we need to do something, this is something, therefore we need to do this.'" He, too, sees affirmative consent laws as promoting misunderstanding about rape:
Rapists are those who engage in sexual behaviors against others who have not consented to those behaviors. Whether the standard is "no means no" or "only yes means yes," rapists will violate that standard, because they are rapists. Perhaps such policies will make it easier to prosecute cases against offenders, but again—it is as easy for someone to claim after the fact that he asked for and received a yes as it is to claim after the fact that the other person didn't say no. These policies seem only to solve problems under the assumption that many rapes are so-called "gray rapes," and yet anti-rape activists have long worked to insist that there is no such thing, or that such situations are quite rare.
De Boer also sees hypocrisy in attempting to promote individual agency and autonomy by requiring that agency be used in a very particular way:
One of the most important parts of the feminist project is insisting that women own their own bodies. This has application to abortion, where the pro-life movement seeks to take physical control of women's bodies away from them. And it has application to rape. The insistence of those who work against rape is that only the individual has the right to define appropriate and wanted sexual practice. With the informed consent of all adult parties, no sexual practice is illegitimate. Without that consent, no sexual practice is permissible. This is a humane, moral standard that has the benefit of simplicity in application and clarity in responsibility.
But it stems first and foremost from the recognition of individual ownership. To define the exact methods through which individuals can request and give consent takes away that control and turns it over to the state, or even more ludicrously, to a dean or some academic grievance board. We should be expanding the individual's control over their own sexual practice, not lessening it. And we should maintain the simplest standard that there is: that if a person rejects a sexual advance, or is in such an incapacitated state that they cannot rejected that advance, or is under the power of the other party to the extent that they feel compelled to consent, sexual contact cannot morally or legally take place.
Yet mainstream feminists have taken up the cause of affirmative consent on campus with vigor. It seems to epitomize critics' charge that these feminists are only concerned with the problems of the privileged and middle-class. Only about one-third of Americans ever earn a college degree. Only about six percent of Americans are currently enrolled in college, and far less on traditional college campuses. Why are the intricacies of consent for this population so much more important than, say, finding funding to test the backlog of rape kits—something that could help catch existing rapists and protect people regardless of their educational attainment (or incapacitation) level?