There seems to be a great deal of support in the online circles I frequent for California’s move to establish an affirmative consent standard for sexual assault prosecutions involving university students. I am deeply uncomfortable with this, for a pretty simple reason; I think it confuses an important social norm with an acceptable legal precedent.
People seem to be interpreting this laws through a lens that assumes broad, implicit, unwritten exceptions. “No”, people say, “of course we don’t mean couples in long term relationships have to ask each other every time they want to initiate sex. Of course we don’t mean that everybody needs to have an explicit, verbal discussion throughout the encounter every time they hook up with someone casually”. This assumes a common sense, selective application of a sound principle: if you’re with someone you know well, you can probably be pretty confident that you know whether or not they’re up for fooling around on any given occasion. The less well you know someone, the more effort you should put into establishing, conclusively, that they are into whatever you’re doing together.
This is absolutely fine and very sensible from a social standpoint. If you’re hitting on someone, at some point something is usually framed as a question, “so, would you like to come home with me?”, and that’s right and good because it gives people a chance to indicate if they’re not interested. Obviously, if you’re with someone new and you’re not sure if they’re just a quiet type or maybe not enjoying themselves, you should check. Of course, everybody decent wants to be sure that their partners are enjoying and actively participating in any sexual experience they have together, whatever that involves in the context of any given relationship. But these are social norms, and they don’t translate easily into legislation.
I would like to think I’m sensitive enough to be able to tell whether my partners are enjoying, or hesitant about, or really not enjoying, any particular sexual interaction we have. I don’t normally feel that I have to ask, though of course I will if someone does seem uncomfortable. But when everything seems fine, I do simply assume consent, as long as somebody is actively participating and seems to be enjoying themselves. This is not affirmative consent in a legally recognisable sense. I have no idea how I would justify my knowledge in a legal setting with an affirmative consent law, because “active”, “affirmative”, and “meaningful” are not all the same thing. Consent can be meaningful without being affirmed in any recognisable way except by continued active participation. But conversely, somebody simply being an active participant does not always imply meaningful consent; someone may actively participate in sex that has been coerced, for example if they feel they need to have sex with their boss in order to keep their job. They could even affirm consent in this situation, but their affirmation is meaningless.
An affirmative consent standard, in law, does not actually solve the issue it is intended to tackle, which is (unless I’m mistaken), how we can prosecute sexual assault or rape cases in which the victim did not actively resist. I will be the first to tell you that I believe, absolutely, that the example I have just given is an example of rape. Coercing or blackmailing somebody into sex is rape. Having sex with somebody who is so intoxicated they would sign their life savings over to a stranger or blithely walk into traffic is rape. Aggressively, persistently coming onto someone who is mute, passive, and obviously very uncomfortable is sexual harassment, and if it graduates to sex simply because the person cannot for whatever reason bring themselves to violently resist, it is rape. These statements are perhaps not widely accepted, and of course, they should be. People need to recognise the limits of meaningful consent, and they need to respect those limits. People who have convinced themselves that sex under these circumstances is not rape need a fucking wakeup call.
The question is how we can translate this critical social norm into legislation. And I just don’t know how that’s possible. I don’t think affirmative consent laws achieve this, because they don’t provide a workable solution as to how the presence or absence of meaningful consent can be established. Someone being raped by their boss, or raped while rendered insensible by drugs or alcohol, might appear to both actively and affirmatively consent, but that appearance of consent doesn’t actually mean anything. Conversely, I don’t think I have ever in my life received a form of affirmative consent from any of my partners that would satisfy the criteria of California’s new law, but I sincerely hope that nobody believes that makes me a rapist. As far as I can see, any consistent application of this law would result in consequences that are completely absurd, which means that the law is basically useless for the purpose of establishing a practical, enforceable distinction between consensual sex and rape.
Laws that, if enforced consistently, would lead to the imprisonment of thousands of people cannot be enforced consistently. Laws that cannot be enforced consistently will be enforced arbitrarily. We have laws like this already; laws against marijuana possession, and against being heavily intoxicated in public, amongst others. These laws are violated routinely, which leaves it up to the police and the courts to decide who is prosecuted and who isn’t. Inevitably, in both Australia and the US, members of marginalised groups are prosecuted frequently while members of privileged groups are prosecuted only rarely.
It is impossible to defend yourself in these sorts of cases; technically, you have broken the law, but everybody breaks this particular law all the time. That is not a defense. It doesn’t matter that everybody else in the pub was drunk as well, that almost all young people in Australia smoke pot at some point, that almost nobody asks their partner for explicit consent every time they initiate sex. If your number comes up, even if it comes up through arbitrary, unfair, or malicious circumstances, even if you have truly done nothing morally wrong, you can easily be convicted. In each case, even if your behaviour was otherwise perfectly acceptable, you have broken the law. A law against which people who have done nothing wrong cannot mount a defense is an unjust law, especially if that law is likely to be enforced selectively.
Affirmative consent laws put a huge amount of power into the hands of systems that are known for arbitrary abuses of marginalised people. It is not that the law’s claims about what constitutes meaningful consent are wrong, it is that this standard of consent, even though it should be a social norm, is simply impossible to enforce consistently in the legal sphere. We do need better social standards for consent. We do need to widely recognise that cases in which unconsenting people did not or could not violently resist, for whatever reason, are rape. We do need better laws to protect people from these crimes. But regrettably, affirmative consent laws do not provide a workable solution to any of these issues. We have to keep looking.