FIRE’s statement on affirmative consent

Whatever your broader thoughts on the Foundation for Individual Rights in Education (and there’s lots we can talk about), you may find this position paper of theirs on affirmative consent regulations to be useful. The nut, for me:

Affirmative consent posits that sexual activity is sexual assault unless the non-initiating party’s consent is, as SB 967 puts it, “expressed either by words or clear, unambiguous actions.” (Indeed, as a practical matter, only explicit verbal communications are acceptable; the bill warns that “relying solely on nonverbal communication can lead to misunderstanding.”) Consent must be continuous and “present throughout sexual activity”; if “confusion” over consent arises, “it is essential that the participants stop the activity until the confusion can be clearly resolved.” The bill forbids the accused from pleading confusion over consent as a defense if he or she “did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.”

Should SB 967 become law, there will be no practical, fair, or consistent way for colleges (or, for that matter, courts) to ensure that these newly mandated prerequisites for sexual intercourse are followed. It is impracticable for the government to require students to obtain affirmative consent at each stage of a physical encounter, and to later prove that attainment in a campus hearing. Under this mandate, a student could be found guilty of sexual assault and deemed a rapist simply by being unable to prove she or he obtained explicit verbal consent to every sexual activity throughout a sexual encounter. In reality, SB 967 would render a great deal of legal sexual activity into “sexual assault” and imperil the futures of all students across California.

We note that the concept of affirmative consent was first brought to national attention when it was adopted by Ohio’s historic Antioch College in the early 1990s. When news of the college’s policy became public in 1993, the practical difficulty of adhering to the policy prompted national ridicule so widespread that it was lampooned on Saturday Night Live. (Indeed, the fallout from the policy’s adoption has been cited as a factor in the college’s decline and eventual closing in 2007. It has since reopened.) The awkwardness of enforcing “affirmative consent” rules upon the reality of human sexual behavior has continued to be a popular subject for comedy by television shows such as Chappelle’s Show and New Girl. The humor found in the profound disconnect between the policy’s bureaucratic requirements for sexual interaction and human sexuality as a lived and various experience underscores the serious difficulty that passage of SB 967 would present to campus administrators across California.

Even the people who show up in my comments to advocate for these policies seem to have little confidence that they will actually make it easier to prosecute sexual assault, rather than make it more confusing, more messy, more ambiguous, and more likely to produce abuse or evasion. Many who support these policies seem to do so out of a desire to be deeply committed to opposing sexual assault in an abstract sense, rather than out of the sincere conviction that these policies will reduce sexual assault in fact.  It’s not enough to want to prevent rape; you’ve got to articulate why a reduction in rape is the most likely outcome of the adoption of these policies. The controversy seems perfectly indicative of the enduring question for today’s left: are we in the business of being good or the business of doing good?

13 Comments

  1. The ad hominems employed to dismiss this position paper out of hand will include the fact that FIRE is associated with libertarian causes and donors.

  2. The strawmanning and No True Scotsman-ing responses to FIRE writes itself. If you’re forever tarred for having had wrong opinions (like Eich), there’s no reason to try to convince you to come around, since, well, you’ll always be poisonous and unsafe to be around.

    Therefore, any response is purely performative, mouthing the correct shibboleths, repeating the same snark, responding to statements made by other people and being seen firmly and loudly on the side of the angels.

  3. There are many things that puzzle me about issues such as this one. Topping the list lately, why do we task institutions that are not chartered to administer the larger society’s notions of abstract justice (universities, the NFL, etc.) to administer our notions of abstract justice? And when they fail, with utter predictability, to do so why do we pick out a functionary or two to get angry at? All the while, the publicly-funded justice system that we pay a boatload of money for being completely ignored? Maybe I just puzzle easily.

    1. >>why do we task institutions that are not chartered to administer the larger society’s notions of abstract justice (universities, the NFL, etc.) to administer our notions of abstract justice?<<

      Important questions.

      I think in the case of Ray Rice, it is because it appears the NFL has lied and was obviously complicit in maneuvering that player through the legal system with as little consequence as possible — the NFL is "too big to fail" and its players, "too big to jail". They are part of the lawlessness that pervades the modern American legal system.

      Universities are in a uniquely horrible place, because they are functionally obliged to investigate themselves. They should have nothing to do with policing sexual assault; that is a job for the police. The law says otherwise. And here we are.

  4. “the NFL has lied and was obviously complicit in maneuvering that player through the legal system with as little consequence as possible”

    The parsimonious explanation is that individuals who can afford decent legal representation tend to have better outcomes. Probably better than rampant speculation based on brief and poorly sourced media accounts.

    Agree with your point about universities. The Penn State situation had some similarities. Since the online world is intently focused on personalities rather than fairly obvious institutional explanations I don’t expect improvement anytime soon.

  5. “The controversy seems perfectly indicative of the enduring question for today’s left: are we in the business of being good or the business of doing good?”

    Neither, it’s about feeling good about being good, where the latter isn’t a necessary component.

  6. You quote FIRE saying:

    Affirmative consent posits that sexual activity is sexual assault unless the non-initiating party’s consent is, as SB 967 puts it, “expressed either by words or clear, unambiguous actions.” (Indeed, as a practical matter, only explicit verbal communications are acceptable; the bill warns that “relying solely on nonverbal communication can lead to misunderstanding.”)

    The law that was passed doesn’t contain this language; FIRE’s statement is from February, and the text of the law they objected to, is not the text of the law that was passed.

    Sorry to bug you; I’ll stay out of your comments now.

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