"Affirmative Consent" Laws Create More Confusion and Problems Than They Would Solve

Charlotte Hays

8/15/2014 12:01:00 AM - Charlotte Hays

In response to the notion that there is a “rape culture” on campus, the California state legislature is on the verge of passing a bill that drastically redefines our notion of what constitutes rape. It moves the ill-advised into the category of a serious criminal act.

Consider this scene: Sally says “yes” to Steve, albeit with misgivings. Despite her reluctance, she allows the act to proceed to its conclusion, without making it clear that she would prefer to be anywhere else. Steve may be an insensitive cad. But is he a rapist? If the bill passes, as is likely, and becomes law in California—yes.

Just to be clear: We have nothing good to say about Steve, and we don’t take this situation lightly. We would give Sally a stern talking to about letting herself get into such a compromising situation, but we're in her corner. We’d tell everybody we know to avoid Steve. Still, designating Steve a rapist or assailant is simply not a true interpretation of what actually happened.

Not only is it unfair to Steve, who is, to say the least, in need of a wake-up call, but it is unfair to Sally. She becomes in the view of the college authorities essentially a doormat who is not responsible for her own behavior. This, my feminist friends, is not female empowerment.

But it may be the logical response to the Obama administration’s promotion of the idea that there is a “rape culture” on campus. The administration is pushing a widely-debunked statistic that one-in-five women on campus—20 percent—is the victim of sexual assault. “We’ve got your back. I’ve got your back,” President Obama tells American college girls on a federal website devoted to curbing sexual assault.

I’d like to believe all of us care deeply about female students who are victims of sexual assault, but unfortunately the administration is setting up a system that actually encourages colleges and universities, at the risk of losing public money, to report a higher number of sexual assaults on campus. It behooves a college to report a high number because, otherwise, it does not appear to be looking out for female students. Colleges are thus inclined to lump together ambiguous situations, including many variations of young women and men coupling while under the influence of alcohol, with forcible rape conducted under the threat of harm.

Passed in the state Senate and now under debate in the California Assembly, the bill seemingly is based on a sentiment with which we can all agree: before engaging in sex, you should be damned sure that the other party wants to, too. This is called “affirmative consent.” It must be “affirmative, conscious, and voluntary” and is the responsibility of both parties to ascertain. Aside from my antediluvian conviction that young people would do better to go to a movie than to the dorm room, this is sage advice.

After that, though, I’m afraid the bill veers into absurdity: “Lack of protest or resistance does not mean consent, nor does silence mean consent.” So you change your mind, engage in silent, but reluctant, sex…and he is guilty of a heinous offense? Yes, because affirmative consent must be “ongoing throughout a sexual activity and can be revoked at any time.” Cathy Young has called this “big sisterism in the bedroom.”

Even the editorial page of the liberal Los Angeles Times—which unlike Miss Charlotte isn’t telling young’uns to cool off and go to a movie instead of the bedroom—has reservations: “It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms,” an editorial opined.

The requirement for “ongoing consent” would mean that the average sex act would have to be accompanied by more “yeses” than Molly Bloom’s famous yes-yes-yes-sex soliloquy in Ulysses—but spaced appropriately throughout the encounter. Indeed, the “ongoing consent” requirement would lend itself to comedic remarks (may we pause a moment to renew your consent?), if it weren’t so serious. What the heck is “ongoing consent” anyway?

The California bill is curiously silent on this all-important point, but it is unclear whether consent has to be verbal. But how explicit must it be? The only clarity concerns the inability of people who are asleep or passed out to give consent: nobody will quibble that a girl passed out in a drunken heap can’t. But alcohol consumption is also widely regarded as an impediment to consent.

“If sexual intimacy under the influence of alcohol is by definition assault, then a significant percentage of sexual intercourse throughout the world and down the ages qualifies as crime,” scholar Christina Hoff Sommers said at the Independent Women’s Forum summer panel on the “rape culture” on campus. And what if both parties are under the influence? Perhaps two people are guilty of making a bad decision, but only one – the young man – should be punished? That’s not fair.

California may be the pioneer in this level of bureaucratizing sex, but this bill is part of a nationwide effort to make it easier to find someone accused of sexual assault guilty. Indeed, both this bill and another one on the federal level, sponsored by Senator Claire McCaskill (D., Mo.) use the word “victim” to refer to the accuser prematurely—under traditional judicial practices, one only becomes legally a victim after the crime is proved. Until then, you are the complainant or the plaintiff.

McCaskill’s Campus Accountability and Safety Act (CASA), may have the laudable goal of making campuses safer for women, but it is a civil rights nightmare. There are no provisions to bring law enforcement into the picture, and these serious, life-changing allegations are considered by college tribunals (as is the case in California).

Stuart Taylor noted on the IWF “rape culture” panel that “perhaps most colleges care more about their narrow self-interest than about doing justice or finding the truth.” In the past, that might have meant covering up rape statistics. But no longer. “The Obama administration and many colleges have adopted a de facto presumption of male guilt in a crusade to railroad the accused, including many young men who have been wrongly accused by non-victims of rape,” Taylor added.

College disciplinary committees hearing sexual assault cases now operate on a “preponderance of evidence standard” rather than according the accused due process, a cornerstone of our legal system. This California bill seeks to do something else injurious to legal safeguards of the accused: turn acts that were not intended and viewed at the time as sexual assault into rape. I’d say this was a subliminal puritan plot to eliminate campus sex, except that it won’t.

The watering-down of the definition of sexual assault is most harmful to genuine assault victims. With ambiguous standards that invite false accusations, this effort to fight back against the “rape culture” actually takes away from the horrendous nature of these crimes. Rather than broadening the activities that qualify as assault, our colleges should be focused on maintaining safety on campus and turning perpetrators in to law enforcement. If someone is truly a rapist, expulsion from school is not punishment enough!

In none of these bills or discussions is attention paid to the two institutions that should be dealing with serious sexual accusations: the police and the courts, where these matters can best be adjudicated.

We do need to consider ways to reduce sexual assault and even discourage the kind of casual sex that can result in broken hearts and, worse, feelings of having been used and abused. Yet the solution surely isn’t to apply the worst of government micromanaging to the bedroom and embrace an explicit bias against young men. This would surely create far more confusion and problems than it would solve, and isn’t privacy something that liberals as well as conservatives are supposed to value?