I think explicit consent laws are a mistake

This cover story from New York magazine on campus activists working against sexual assault is deep and challenging, and you should read it in full. I want to talk a little bit about the burgeoning movement for explicit consent laws. These laws change the typical standard from “no means no” to “only yes means yes.” As the article puts it, “Students are now required to have ‘unambiguous communication and mutual agreement’—that’s verbal consent—before sexual acts, or risk ­consequences.” The standard, in other words, is that each partner must ask the other, explicitly and orally, before any particular sex act takes place. While I understand the great urge to work proactively against rape, given its moral and emotional horror, I think that these policies and laws can actually undermine attempts to address sexual assault, and worse, take sexual ownership of the self away from the individual.

First, I think that it’s a mistake to create different standards of consent for college students. The potential unforeseen consequences scare me, and besides, a central aspect of the fight against sexual assault is to insist that rape is rape. I think it sends a retrograde message to suggest that there is a different standard that is applied only to college students. I would argue that a clear takeaway from the New York piece is that the establishment of this entire separate legal system for campus sexual assaults, while undertaken with good intentions, has added a layer of complexity and lack of accountability that has backfired badly. Campus-only affirmative consent laws seem to deepen this problem.

Second, I am unclear as to which problem this is supposed to solve. 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.

Third, I think it is almost always a mistake to institute policies or laws that we know will be ignored by many or most people. When I have talked through these ideas with supporters, I have often been surprised to find that even they doubt that most college students will obey the policy. I think it is sensible, given human nature and the nature of college, to doubt that all college students will give and expect explicit verbal consent before each sexual act. What percentage of 20 year olds will actually engage in such a policy? My guess is that it would not be high even after education and public service campaigns. Establishing rules we know will be broken does not help us oppose the behaviors we are fighting against; I suspect, in fact, it will do the opposite. These problems are particularly clear for those who are in long-term romantic and sexual relationships. When I point this out, I often hear that such people should be exempt from affirmative consent rules. But creating exemptions preemptively is a poor way to start instituting a new social norm. Again: the insistence has been, correctly, that rape is rape, and that people can and do rape their partners in a committed relationship. We can’t create a new norm and allow for exceptions that perpetuate misguided notions about who can or should be exempt from standards of consent.

I could be wrong, but my reading of most people’s sexual preferences is that they are not interested in asking for or expressing explicit sexual consent. Rather, they are comfortable with the conventional standard that no means no. If two people engage in consensual, pleasurable sexual acts without voicing explicit consent, who is guilty, and of what? People have a tendency to say “no one would ever be arrested in such an instance.” But then in what sense are we building a norm or legal precedent at all? Saying that people should not fear the consequences of failing to follow a legal or social norm directly undercuts the effort to build that norm in the first place. It seems to me to open up a moral and legal can of worms, one that could easily lead to all sorts of ugly consequences.

Fourth, and most importantly: I feel strongly that explicit consent laws actually undercut the absolute ownership by the individual over her or his own sexual practice.  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.

“No means no” works. And the fact that many men continue to force sexual acts after they have been told no does not mean that the standard is broken. It means that they are broken. We don’t need to change the standards of consent. We need to teach men not to rape and to punish those who do.

Given the horrors of sexual assault, the desire to do something is powerful and totally understandable. 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.” I am surprised that some passionate activists have become attracted to this way of thinking, as to me it seems like a corporate, self-protective policy, one designed to create the appearance of progress rather than progress itself and to legally and politically protect powerful entities.

I could easily be wrong about this, and I’m willing to listen. But I hope that we can pause and recognize that there are frequently unforeseen consequences of even the most well-meaning policy. More, I hope we recognize that in the final analysis, what must change is not policy but behavior for rape to end. There are policy steps that we can take to help victims while preserving due process and rights of the accused. Ultimately, though, behavior must change, through education, activism, and demand.

40 Comments

  1. Freddie,

    I think you’ve got some reasonable theoretical arguments here, but do you actually have some data to back it up? Affirmative consent policies have been tried at some universities before right? Have they actually worked?

    Affirmative consent seems like the kind of thing that could make cases easier to prosecute, but maybe it doesn’t or maybe it only does so by raising the false negative rate. Has anyone tried it as a law rather than policy before? Do we have any idea how that worked out?

    Ultimately, I’m not sure I’m swayed by your point four, because sometimes we regulate to reduce our choices in those instances where we are most vulnerable to exploitation. We’re in very different area than employment law obviously, but if it turns out that some sort of freedom reducing caveat can be added to your definition that makes it far easier to adjudicate border cases and thus greatly improve enforcement with the downside of requiring some class of BDSM practitioners to fill out some extra paperwork to stay compliant, that’s a trade off I’d consider.

    I appreciate that you’re trying to start a debate here, but if you really want to move the ball forward on this one, I think you need some discussion on what policies have looked like in practice or some better alternatives. I have no idea what best practices look like here, but surely some states or some countries or some universities have been more successful here.

    I think it’s also reasonable to just say that the policies are a big change without having met an adequate burden of proof, this seems like a solid reason to restrict things to a pilot program. But you seem to be arguing against even experimenting with them.

    In practice, all of these questions are hard work and not in your field. It wouldn’t be fair or reasonable to expect you to answer even a fraction of them directly. You really want to engage this topic, as you seem to given the number of recent posts and your comment on Rosenberg’s blog recently about the need for an adult conversation. But I think getting an adult conversation going probably requires some input from experts with a sense of the extent of the problem and what has actually worked or failed in the past.

    1. I think the standard you’re trying to apply here — that only the presence of some obviously better policy can function as an argument about a policy proposal — is just unworkable. We’re taking about a massive change to our sexual laws and rights. The burden does and must rest on those proposing the change.

      1. I think the standard you’re trying to apply here — that only the presence of some obviously better policy can function as an argument about a policy proposal — is just unworkable

        That’s fair. Ultimately, if you’ve got things that haven’t been tried before it’s perfectly fine to use theoretical arguments against taking them up. And California is a pretty dang big experiment.

        But if we’ve got a real problem here then it makes sense to try a variety of approaches and see what works. And changing policies should have a lower burden than changing laws.

        However, in the absence of a compelling alternative and in the absence of evidence that the policy has failed in places where its been tried, this seems like territory worth exploring.

        You do make a good point on the anti-rape activist arguing against the prevalence of grey rape, and I’m willing to accept that on face value. However, the point of the policy would seem to be to make it harder for rapist to pretend to grey rapists by requiring that they actively lie (and keep a consistent story) rather than just letting them dispute interpretation.

        So, pulling back my original point, I think you do have a good case that absent compelling evidence I’m unaware of, it’s probably too early to try these policies on that scale or in the criminal justice system. But in the absence of a compelling alternative policy or evidence that it hasn’t worked when tried in the past, this seems like a worthwhile experiment. It’s certainly one to be cautious about, for the reasons you cite.

        Ultimately, I think there’s a difference between, we need to do something, this is something, and we have a real problem, lets try a few different things and see what works.

        1. I appreciate your commitment to experimentation. However, I do think these problems are actually problems.

          First, it is not at all a trivial or unimportant question: should people who have had consensual, mutually-pleasurable sexual contact where they never explicitly seek or obtain consent be considered guilty of rape? If not, how is the standard a standard at all? How do you build a standard, legal or moral, by preemptively declaring exemptions to that standard? Precisely part of what makes rape hard to stop is the insistence that there are exemptions to the requirement of consent by the accused– she’s my wife, it can’t be rape; we were both drunk, it can’t be rape; she’s a slut, it can’t be rape…. Adopting a new standard that no one thinks should be applied in most cases seems to me to be going backwards.

          Second, I will again point out that a rapist will rape whether the standard is “no means no” or “only yes means yes.” And they will after the fact say “she said yes” as quickly as they will say “she never said no.” Meanwhile, you’re effectively criminalizing very common sexual practice (where people have consensual sex without stopping to say “can I have sex with you now/yes you can”) for everybody else who isn’t a rapist. You’re increasing the burden on the people who aren’t guilty without creating a meaningful new impediment to the people who are guilty.

          And I just fundamentally believe that we have gone very wrong when we begin altering everyday sexual practices because of the bad behavior of a small minority of people. Billions of people have healthy, happy sex lives without ever raping anyone. That we are coming to define sexual activity constantly through the lens of rape just seems like the ultimate “the terrorists have won” concession to the worst of humanity. Many, many people– men and women, straight and gay– want to engage in sexual acts with their partners without stopping, every time and for every act, to say “may I?/you may.” They have a right as free adults to make that determination about their own sexual practice, and it’s perverse and sad to suggest otherwise.

          1. Freddie,

            Thanks for taking the time to follow up and target the argument.

            Alright, these are all points you made originally, but with your focusing on points one and three, you’ve actually swayed me. You’re probably right that we’re talking about an enormous number of encounters that do take place that would be banned by this new standard and do no one any harm, much the opposite.

            So, I think I’m okay with encouraging a move in social conventions towards affirmative consent. But unless and until that shift takes place in a big way, advocates should find a way to reconcile their system with common practice.

            I’m still not swayed by the second point, absent data. I could see a situation where establishing clearer line prevents some portion of a crime that thrives on the ability to exploit ambiguity. I could also be wrong, but I’m up for testing that sort of thing. However, arguments one and three do stand on their own even if it was effective.

          2. Here’s what I think makes sense: creating a strong social message that, in any encounter where there is potential for ambiguity or confusion, always ask for consent, which can be as simple as “Is this OK?” I think you can create that expectation without having to fundamentally change the rules of consent such that consenting adults are compelled to alter their sexual practices or risk violating the law, even if that law will never be enforced against them.

    2. One example of a campaign that has had success:

      http://freethoughtblogs.com/greta/2013/01/08/rape-prevention-aimed-at-rapists-does-work/
      (“I would like to point something out: This wasn’t a years-long or decades-long effort to radically change the culture’s attitudes about sexual consent. This wasn’t a years-long or decades-long effort to radically change the culture’s attitudes about sexism and misogyny and sexual shame and entitlement and attitudes about masculinity and so on. This was a one-shot public service campaign: a series of posters distributed in bars, nightclubs, transit stations and campus facilities. And it still had the apparent result of reducing the rate of rape by 10%.”)
      —-

      I also find this campaign interesting because it seems in line with the idea that “We don’t need to change the standards of consent. We need to teach men not to rape and to punish those who do.” It’s explicit message isn’t “only yes means yes” or even “no means no,” but is rather, “Don’t rape.” And further, implicitly – “don’t rape, because it’s wrong, and because you know you know it’s wrong, and because your peers/community know you know it’s wrong.”

      1. Sarah: Great, that seems like a good set of low-hanging fruit.

        I’ll confess that I wouldn’t have guessed it would be that effective, to the annoyance of the poster you link no doubt. But I consider myself stumbling in the dark here and am glad to learn that I’d have been overly pessimistic. This does seem like a valid concrete implementation of some of the ideas Freddie was talking about.

  2. Interesting thoughts. I’m not sure how I feel about instituting explicit consent laws for the reasons you outline, but I DO think that as a society we need to move to an enthusiastic “hell yes! means yes” model of thinking about mutually enjoyable sexual expression. How to do that is the hard question.

    I enjoy Al Vernacchio’s “Pizza Model” as a great rhetorical starting point, but aside from making everyone watch his TED talk, I don’t know how else to spread the word.

  3. I read this a few years ago so I can’t find the source, but there was an incident of a LGTQ activist who had used affirmative consent as a tool for abuse & rape. Essentially, they used constant affirmative consent statements/questions (like Antioch Guidelines level) to provide plausible deniability (“How am I a rapist? I obtained consent before every single thing that I did”) for mentally wearing down the other people’s boundaries.

    That said, the data that I would want to see is what percentage of rapists (and rapists are only something like 3% of the male population) are “accidental rapists” (“I thought that I had non-verbal consent”) vs. well, predators.

    1. I’d like to see that data as well.

      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.

      This may be me privileging anecdotes over data, but most of the sexual assault stories I’ve heard (from friends and other speakers) have been in that gray zone. I could always stand to educate myself more, so I’ll poke around for some numbers, but this was the most surprising part of your post to me.

  4. Haven’t read the NY Mag piece but Freddie makes some good points. But one benefit of a “yes” policy is that one has to be conscious to say yes. That eliminates the “misunderstanding” defense–“I didn’t realize she was unconscious/blacked out.”

  5. Two comments:

    1) I can’t see any justification for an academic institution having policies which seek to regulate the private lives of students (or faculty or support staff). Policies about academic matters such as attendance, plagiarism, etc, sure. Policies about sexual behaviour: none of their business.

    2) If, however, the university bureaucracy feels a need to pretend to be doing something, then it needs to deal with the fact that it’s easy to claim afterwards that consent was given orally. The logical solution would be to require that all participants sign written contracts before every sexual encounter, in the presence of a witness, preferably a notary or lawyer. Perhaps the university could supply on-call legal staff to be available on a 24-hour basis.

  6. There is a part of me that believes the supporters of laws like these do not believe in committed relationships and are trying to destroy them.

  7. The great trick proponents of this sort of thing is to make even the suggestion that an adjudicatory process can be brought against an innocent person an occasion for all good people to take offense. Jessica Valenti is a master of the form.

    If it’s offensive to suggest that innocents would ever get caught up in the system, any discussion of due process and consent standards are a little pointless, aren’t they?

  8. Thank you for writing this – I agree and I think we need be talking about the fourth point a lot more. These standards of consent are changing the definition of rape, and I have to be weary of them because they have the potential to reclassify a lot of my sexual experiences as “rape-y” because I’m not in the habit of giving explicit or enthusiastic consent. I really resent being cast in the default victim role, as if I didn’t actually have any agency in those situations. I did have agency – I could have said no.

    It’s okay to feel ambivalent or conflicted about sex – you don’t always have to feel 100% positive and healthy about every decision you make with your body. I think these conversations are encouraging young people to assume that because they feel weird or bad or guilty about sex, that means they experienced sexual violence. Instead of just having confusing sex, they had traumatizing sex, and the person who had sex with them is guilty of an unforgivably violent crime. It’s really outrageous that this is how we’re fighting rape! It’s like we’re not confident enough that rape is real and happens all the time, so we need to broaden the definition to prove it.

  9. Unfortunately I’m not very familiar with the exact text of the policies, and as pointed out, none of us can really anticipate how they will be interpreted and enforced. Though I doubt anyone would prosecute a case where they fully believed the sex was wanted by both parties.

    Some feminists have pointed out that affirmative consent does not necessarily refer to spoken consent, (let alone a contract). Any action that is clearly deliberate and is obviously meant to lead to further sexual activity should count as affirmative consent. Example: Taking off your shirt is consent, sitting still is not. Ultimately consent just means that you want it, and that you have somehow indicated that you want it.

    http://feministing.com/2014/06/25/affirmative-consent-just-means-mutual-desire-and-it-should-definitely-be-the-standard/

    Feminists also generally believe that rapists are created by, or at least enabled by their culture. There are certain stereotypes and beliefs about sex that are common in the culture that ultimately encourage rape. Certainly the idea that women don’t like sex, or that REAL MEN just take what they want and that men always want sex.

    I doubt that many rapists consider themselves as such. They define rape and sex differently, and often it seems that much of the general public buys into that alternative definition of sex. In it sex is like a game of baseball where the men are supposed to “score” and the women are responsible for defending themselves. There are a lot of women who make their rape public knowledge only to see their story questioned. They don’t question the actual details, but rather deny the idea that it was a crime. “What were you wearing?” “Boys will be Boys” etc.

    1. But that notion that you can consent without vocalizing is exactly the current norm. The standard means nothing if you don’t have to ever actually say things explicitly. Which again points to the notion that this is a solution that is posed for political reasons rather than because it will actually work to reduce rape.

      1. Quince is right; the policy doesn’t call for verbal consent anywhere. Nor does California’s recent law. So all of your “no one ever has sex like that in real life” arguments are based on a false premise.

        But that notion that you can consent without vocalizing is exactly the current norm.

        A current norm that many people believe is that the lack of an explicit “no,” or an explicit, sustained series of “no”s, equals consent. For many people, lack of resistance is considered the same as consent.

        See, for instance, this George Will column, in which Will makes it clear that he doesn’t consider a case involving a woman who said “no” once but didn’t continually say no, but also never consented, to have been raped. Although many people disagreed with Will’s column, many others – including folks like Reason columnist Cathy Young, who is often invited to write about rape issues in mainstream publications – agreed with him.

        When I was in high school, guys would whisper strategies to each other to try and get girls to be isolated with us without a way to leave (such as conveniently running out of gas in a lonely spot). I’m not in high school any longer, but I bet some guys are still trading similar strategies today. The idea was to put the girl in a situation where it was difficult to say “no, ” and in which she could be pestered until she stopped saying “no” or resisting. This was not considered rape by any of us. (The TV show It’s Always Sunny In Philadelphia satirized this attitude brilliantly.)

        Don’t get me wrong – obviously, a great deal of willing and eager sex has happened in such “get her alone” circumstances. But there’s also a great many boys and young men who are very desperate to have sex, and who are highly motivated to believe that a lack of explicit, sustained resistance is the same thing as consent. Making it explicit that consent of some sort is required is extremely worthwhile.

        1. As a practical matter, I do not see and have not seen any cogent explanation of what explicit but non-verbal consent could entail, particularly given that the whole point of such a law is to remove ambiguity and confusion. People keep making your point, and yet they seem to do so in a remarkably glib way when it comes to how this would actually function in human practice.

          1. It’s interesting that in the space of two comments you went from saying “you can consent without vocalizing is exactly the current norm” to implying that you don’t know what non-verbal consent could entail. I’m sure that you’ve experienced non-verbal consent many times; when we kiss someone and they passionately kiss back, that’s consensual for both parties. On the other hand, if I kiss someone and they freeze up and pull back their lips a bit or turn their face away from my kiss, I’d stop and make sure they’re okay with what’s going on – and I bet you’d do the same. It’s not mysterious.

            (Maybe your confusion is caused by the term “explicit” – what is “explicit but non-verbal consent”? However, neither the Columbia policy nor the California law use the word “explicit.”)

            Both the Columbia policy and the California legislation focus more on saying what is NOT indicative of consent. “Consent to one form of sexual activity does not imply consent to other forms of sexual activity. Previous relationships or previous consent for sexual activity is not
            consent to sexual activity on a different occasion.” … “Silence or the absence of resistance is not the same as consent.” … “Consent can be withdrawn at any time,” etc.

            Since there is, in fact, “ambiguity and confusion” about whether silence or the absence of resistance is the same as consent, a law explicitly stating that they are not undeniably removes some ambiguity.

            That said, it is not possible for any rape law to be 100% free of all possible ambiguity; as long as there are laws against rape, there will be some ambiguous cases. But overall, this law seems like a fairly sensible approach, and is a much more modest change than your post indicates. I think you would benefit from reconsidering your view in light of better information of what these rules actually say.

          2. Despite your ample condescension, I don’t think anything you’re saying meaningfully defines how this policy is materially different from existing rape statutes, aside from its potential to further confuse already vexing issues in the prosecution of rape. (Codifying “your eyes were telling me yes” in law seems like a not great idea to me.) You say that I’m denying the ability to imply consent after having already done so. In fact, there’s no contradiction at all: my position is that what matters and works when it comes to consent is “no means no,” that it is the ability to reject a sexual advance that has to remain the standard for consent. That is perfectly consistent across my responses. In contrast, you argue for a more formal definition of consent that performs the neat trick of actually confusing the issue immensely and inviting the potential for mountains of abuse, and which would not in away way make pursuing the truth in a court room any easier. “She consented affirmatively but non-verbally” is just as easy for a rapist to say as anything else.

            And I think that this is motivated not by the belief that this type of policy will actually have a non-trivial impact on the prevalence of sexual assault, but rather out of the desire to appear to be Doing Something about sexual assault, when in fact such a policy would not decrease the incidence of rape at all and would in fact invite all the negative potential consequences I’ve laid out here.

            By the way: you might want to tell your ostensible allies that these laws do not entail what you say they don’t entail, because most of them -including the argument I’ve linked to and quoted here – are advocating for exactly what I’m saying they are.

          3. I’m sorry if I seemed condescending; that wasn’t my intention. And although of the two of us I’m sure I’m better at drawing comic books, obviously you’re much more impressive than me as a political writer.

            But in this case, you’re mistaken about a core fact. Your original post is clearly written under the belief that the Columbia policy calls for verbal agreement at each step, e.g,

            I think it is sensible, given human nature and the nature of college, to doubt that all college students will give and expect explicit verbal consent before each sexual act. What percentage of 20 year olds will actually engage in such a policy?

            The Columbia policy doesn’t say that at all. If I’m mistaken about that, please show me by quoting a passage anywhere in the policy itself in which it calls for “verbal consent before each sexual act.”

            Anyway, obviously you don’t like my style of disagreement, so I’ll stop posting comments here. Have a good night.

          4. Would you be satisfied by my saying “to the people who are arguing the position I am critiquing” (which are many and which, as I said, include the author of this article), “I think this is a mistake”?

          5. I just read the policy and the article. At Columbia at least, the unambiguous consent standard appears to be a lower bar than affirmative consent. The article cites a traffic light poster with a red light/yellow light/green light analogy, but the relevant official was speaking of that as a guide rather than the policy itself.

            Based on the combinations of the rules and examples (p.21-22), the Columbia policy would appear to be:
            1) When you are not in possessions of your faculties, you can’t consent.
            2) Once you indicate no, either verbally or by clear gesture such as removing someone’s hand, subsequent silence does not override that no.
            3) Only affirmative consent taking place after that no counts. Prior consent or consent in a different area doesn’t override a no.

            By comparison, the California bill does establish an outright affirmative consent policy.

            To be clear, the Columbia policy does not have an example to the affect of “Adam and Betty are in a relationship where consent has previous been given and there has not been a subsequent objection. That particular night, Betty is tired but in possession of her facilities. Adam engages in sexual contact that she is aware of. She returns embraces but otherwise does not show explicit enthusiasm and does not verbally say yes. However, she does not show any objection to physically or verbally.”

            This example doesn’t qualify as affirmative consent and may not be a particularly satisfying all around. However, I’d say that it does qualify as unambiguous by the Columbia policy grounds.

            This is not to say that the Columbia policy is well written and it may be intentionally dodging that issue. It should be clear on this matter because this is a very important difference. I appreciate that advocates don’t want to lay out clear examples of “this is how close you can get to the line” but as you say when it comes to policy rather than culture you need bright lines.

            So, I’m continued to be swayed by your argument against affirmative consent as a policy. However, the Columbia example seems notably different than the California one. That said, even if I’m right in my interpretation of unambiguous consent, the policy should be clarified on that question.

          6. I do not see and have not seen any cogent explanation of what explicit but non-verbal consent could entail

            A says to B, “Do you want to have sex?” In response, B strips naked and begins kissing A passionately. Other variations on this theme are imaginable.

  10. Under these “yes means yes” laws, you can be prosecuted or expelled from school for the “crime” of waking up your partner with a surprise blowjob.

    Screw that!

    1. you can be prosecuted or expelled from school for the “crime” of waking up your partner with a surprise blowjob.

      Well, yeah, and you probably ought to be, if your partner was offended enough to report the incident to the police.

        1. It’s not really “post-hoc”.

          If there any prior significant risk that the recipient of sexual activity in sleep (or indeed, in general) might object that seriously, then why is it so important to take the chance? Think about it: a hypothetical person is worried that the other partner might unexpectedly call the cops in the event that (a) an affirmative-consent standard is in place in your jurisdiction and (b) you have decided to provide some surprise oral sex. Do we really need to extend legal sympathy to that person when they go ahead and do it anyway?

          There are neighbors in the world who have developed, through years of habit, unspoken agreements about borrowing lawn tools. There may be other neighbors of whom one merely thinks they’ve developed that habit, while the other does not. So this sort of gray area already exists with regard to theft-vs-borrowing, although it’s unlikely to reach the legal threshold because it’s a much more minor crime.

          The point that we can use the presence or absence of filing charges as an additional factor in the evidence for or against rape isn’t some kind of terrible inconsistency or legal nightmare. It’s really just a variation of what many opponents of affirmative consent have said all along: That partners are often able to intuit nonverbal consent. No one disagrees with that.

          The novice asks the romance-traditionalist, “Should I ask before kissing?” The reply is “No. You should just know”. “But what if I guess wrong?” “If you guessed, then you didn’t know.”

          Proponents are agreeing to some of that while disagreeing with a principle that “asking spoils the mood”, and with the stipulation of erring on the side of caution rather than treating potential ambiguity as a license to proceed. In other words, in contrast to a message of “People usually don’t verbalize consent but send nonverbal signals, therefore we’ll just have to accept the risk of noise mixed with the signals because “, we’re saying “You might see signal where you want to when it’s really noise (or even the opposite signal). Play it safe.”

  11. Scott Lemieux has some comments (at http://www.lawyersgunsmoneyblog.com/2014/10/thoughts-consent-campus):

    First Paragraph: “Affirmative consent does not mean only verbal consent. Chait doesn’t make this mistake, but it does seem to come up in some critiques of affirmative consent — Freddie de Boer’s, for example. I do agree that a standard of consent that required verbal consent for every sex act would be silly and unworkable. But the California standard does not in fact require this. I don’t know about the proposed Columbia standard, but the New York piece Freddie cites simply asserts that consent must be verbal without backing this up with an explicit evidence from the text. Consent does not necessarily have to be verbal to be unambiguous. For this reason, I don’t agree with Ezra Klein that the California law is an “extreme” law perhaps justified by an extreme problem, and I think the alleged ambiguity of consent is vastly overstated. Jessica Valenti is excellent on this point.”

    1. “I do agree that a standard of consent that required verbal consent for every sex act would be silly and unworkable.”

      The Antioch College code of conduct still does, in fact, call explicitly for verbal consent. Perhaps the ongoing confusion arises from the fact that this is the most conspicuous real-world example of this type of policy being implemented. The California law is ambiguous on this point.

  12. “A says to B, ‘Do you want to have sex?’ In response, B strips naked and begins kissing A passionately. Other variations on this theme are imaginable.”

    Couple of problems here.
    1. What you describe here is utterly indistinguishable from how non-rapists already conceive of sexual activity under the “no means no” standard.
    2. The signature event in this discussion, the rape of Emma Sulkowicz, simply could not have proceeded in a non-rape fashion without verbal consent. Assuming, of course, that the description in the article is accurate.

    1. Your point 1 isn’t true.

      First of all, the situation described begins with explicit verbal request, which many of the only-no-means-no defenders like to suggest would kill the mood.

      Secondly, lots of people think that it still wouldn’t be rape if B’s response was to remain mostly still and quiet, or to act nervously, just as long as B never gave explicit (verbal or non-verbal) refusal. That’s the point of the standard.

      1. “Your point 1 isn’t true.”

        Yes it is, because we’re not talking about the initial request, we’re talking about B’s response. That’s the “affirmative consent” part.

        “lots of people think that it still wouldn’t be rape if B’s response was to remain mostly still and quiet, or to act nervously, ”

        It’s often the case that someone wants to have sex but is nervous and quiet during the act. Presumably, that person will not make a rape charge. The person that is raped but not resisting in overt ways can make the charge under either the old or new standard. The new standard is, I presume, supposed to close the rapist’s loophole, forcing him to make a minor change in his story. That brings us back to one of the original problems, which is that the new standard makes changes that are either nonexistent or so tiny as to be meaningless.

        Or is it? What you say above suggests that any sex act which does not feature overt enthusiasm by both parties is prima facie a rape. That would indeed be a profound change to the way many people experience sex, which brings us back to another original problem, whether the new standard makes a profound change or not.

        I haven’t made up my mind yet on whether the affirmative consent standard is a good idea, but what I’m getting from the discussion is a lot of what it isn’t and very little of what it is.

  13. I think affirmative consent laws are CYA for the university–they would not be under so much consideration if the universities were not thinking they would protect them somehow. They also make pestering someone into saying yes a GOOD and not a bad thing.

    What is needed is actual sex education and less sexism. Then, perhaps, women would not be in so much danger of rape.

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