Affirmative consent laws are not the answer.

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.

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Standing on the precipice.

“You think it is me that you degrade now. It is not. It is you.”
-Servillia, Rome

This time last year I went to the World Press Photo exhibition for the second time. With few exceptions, the photography is both moving and confronting. Some photos were posed portraits, while others featured destroyed buildings in Gaza and Aleppo. The image that affected me most was a candid shot: a girl of seven or eight wailing over the corpse of her father at his funeral, her expression somehow strikingly adult, one of pure anguish.

The caption identified him as one of Assad’s soilders. I will not link to it, but it is an important photograph. I try to view all war through a lens that clearly acknowledges the humanity of all participants. In a war like Syria’s, where from the earliest days the reports were of the systematic torture and mutilation of dissenters and journalists, this is hard. That photo is important. The girl in it matters.

Yet photographs like this disturb me, and reveal perhaps the deepest unresolved conflict between my intuitions and my ethics. I feel compelled to seek out good photojournalism. It seems self-evident to me that one must cultivate an ability to confront the terrible suffering in the world, and a willingness to grapple with the complexity of the situations that bring it about. One must learn not to turn away.

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There are, of course, multiple forms of media through which one might do this, with varying degrees of immediacy. I read more than I look at photographs. I do not watch videos. Even distant film of the tiny figures falling from the World Trade Centre distresses me. I am horrified at the thought of watching James Foley recite his scripted last words, at bearing witness to his degradation and his death. I feel, profoundly, that it would be a terrible violation for me to view that. And yet, as a consequentialist, I cannot explain this feeling. Who would I be violating? He is dead, and past all further harm.

The case is not so simple in that of the Syrian girl. She is, hopefully, still alive. One day she will be old enough to understand what it meant that there was a strange man with a camera at her father’s funeral. One day, perhaps, she will look upon her own face, twisted with grief, and know that thousands of people around the world have seen her that way, at that moment. How will she feel? Will she be harmed? Has she been harmed already? Perhaps such a concern trivial compared to the harm that the photograph documents. I don’t know.

The photographer cannot know the answers to these questions. Some of the most powerful photojournalism we have seen has been taken in situations where the consent of the subject is absolutely impossible. Once the photograph is taken, what are we participating in when we view it? Does it matter whether our motivations are pure or vouyeristic?

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There is a link here, of course, with the issue of looking at leaked, explicit photos of people who have made it clear that they do not want the photos to be viewed. It seems clearer cut – the motivation to view such photos cannot be “pure”, although I would argue that it may take several forms, some more excusable than others. Jennifer Lawrence has, unquestionably, been harmed by what has happened this week. But given that she will never know the number of people who have viewed those photos, is she further harmed by any one individual choosing to look at them?

I don’t believe that she is, and although I would say anybody looking at the photographs is participating in degrading her, I would not go so far as to argue that they are assaulting her. I don’t find that claim coherent. She has been harmed, but her distress does not grow with each additional download. I would argue that the problem with viewing those photos is, perhaps ironically, not to do with its impact on her, but rather in what it reveals about the viewers.

There are, no doubt, simply teenagers out there who have a crush on Jennifer Lawrence and consequently find pictures of her especially exciting. This is the most innocent reason I can imagine somebody might have for viewing the photos, and although I hope those boys will have more empathy and a more nuanced understanding of privacy and consent when they’re older, I’m not especially concerned by that.

What I do find disturbing is what the demand for improperly obtained sexual media reveals, given that the internet contains more porn than anybody could watch if they devoted the rest of their lives to it. The fact that people go to the trouble of hacking women’s webcams for the sake of watching them get undressed for bed in the evenings indicates that there is a strong desire among some segment of the population to get off looking at women who don’t know they’re being watched, and wouldn’t want to be. Making a consequentialist case that those women have been harmed even if they never discover their observation is difficult, but making the case that that behaviour reveals a disturbing lack of empathy in the viewer is not.

We must be very careful. If one values empathy highly, it should be hard to walk through the world press photo exhibit. We should leave feeling shaken and questioning what it means to be human. We should struggle. If you can approach the video of James Foley the same way I approach photojournalism, you should be deeply disturbed, and saddened, by what you see. My suspicion is that a lot of people may have watched that video in a different spirit. Perhaps some of them have come to regret that. When we approach this type of media voyeuristically, whether the content is violent or sexual, we cultivate something ugly in ourselves. We are practicing indifference, slowly numbing ourselves to the humanity of others.

Whatever you do, you do to yourself.

The Nerdy Boy Catch 22

Well, when I started this blog a few weeks back I said I might talk about sex at some point. So here we are. It’s entry five, and I want to talk about boys who don’t get laid enough. Ha ha, you say, it’s a tautology! She’s making a funny joke! Alas, I’m serious. Some people get laid way, way less than they would in a just, sensible world where we weren’t all fucked up over gender roles and carrying around baggage from high school. Substitute “have meaningful romantic relationships” for “get laid” if that’s your preference, “get laid” is just my shorthand.

If you’re a nerdy boy who gets laid enough for your liking, congratulations. This post is not for you. If you’re a nerdy boy who doesn’t get laid enough and what follows here comes across as patronising or useless, I apologise in advance. I just want everyone to get laid more, and I’m trying to do my bit. It’s a tough job, etc.

Doubtless most of you will agree that the heinous experiences most smart people have as teenagers tend to stay with us, even once we find our niche among the other nerdy / alternative types as adults. I think the social stuff is easier to catch up on than the sexual stuff – most of us have made a lot more new friends by the time we’re 25 or 30 than we’ve had new lovers. This results in something I recently christened the Nerdy Boy Catch 22.

It goes like this: You don’t think you’re attractive. You don’t notice when, or you’re never sure if, girls are interested in you. You almost never hit on anyone. You don’t get laid much. You don’t think you’re attractive.

The reason it’s the Nerdy Boy Catch 22, not just the Nerd Catch 22, is this: girls, at the very least, will have been hit on by their mid twenties. Maybe only rarely by boys we were attracted to, and probably much more frequently by drunk / creepy / sleazy dudes we couldn’t get away from fast enough, but hit on none the less. We’re still subject to a bunch of toxic shit about beauty and a lot of us are really unhappy with the way we look, but most of us have at least exposed to the idea that some people want to sleep with us anyway. I don’t know if being hit on by people you’re really not into is better or worse than not getting hit on at all, but the effect it has on your self-image is clearly different.

Of course if you’re a gay boy who’s not involved in a gay scene, none of those proactive (mostly straight) boys will be hitting on you either, which I’m sure is at least equally miserable. I don’t feel like I can say a whole lot else about that experience or how to make it better, because I’ve never been involved on either side of it. I am, however, frequently a girl trying to get a nerdy boy into bed without embarrassing myself. Sometimes it requires neon signs and / or rugby tackling. Awkward.

Nerdy boys: You’ve probably been attracted to a bunch of girls without getting the impression they were attracted to you. In some cases you were right, unfortunately, but I’m almost certain that at least once or twice you’ve been wrong. I know this because I occasionally surprise the hell out of nerdy boys by hitting on them – not just because girls don’t hit on boys a whole lot, but because these boys didn’t get that I was interested until I’d put up the neon billboard and hired the singing telegram.

My own nerdy ineptitude probably makes me useless at flirting, but that’s something else to keep in mind: some of the girls you’re interested in are just as hopeless at all this as you are. If nobody gets up the courage to hit on anybody else, we’re going nowhere fast. If the only guys who hit on girls are those sleazy, sexist creeps, nobody’s having a good time. Probably not even those guys. I know you’re most likely a good feminist and I’m glad of that, truly. But even if you are, please, for the love of all that is holy: tell the second wave to leave you the hell alone, and ask a nice, nerdy, third-wave girl out for coffee.

Girls who like nerdy boys: if you think it may be well received, be prepared to hire the singing telegram. Seriously. That guy is just as scared of making an idiot out of himself as you are, and he has the added pressure of really not wanting to be a creepy dude. He might be so scared of being that guy that it’ll take everything he’s got to ask if he can add you on Facebook. If you’re waiting for him to make a move, you may be waiting forever. Be prepared to hit on boys. Just as importantly, assuming we’d all like to live in a world where hitting on people is less scary: be gracious when boys hit on you and you’re not interested. Unless he’s a drunk asshole, hitting on you is hard. Don’t look at him like he just threw up on your shoes. If you’re polite about it he’ll be less scared to hit on the next girl, and she might think he’s a fucking rockstar. In which case, you’ll have helped someone else get laid. Hooray sexy karma!

Nerds of both genders: There’s obviously a risk involved in hitting on people, especially when you’re not great at telling whether or not they’re actually interested in you. That in turn is something you only get better at with practice. Disasters are best avoided by taking baby steps. You don’t need to show up at anyone’s house with a bunch of roses and a hand-written collection of Neruda’s sonnets. (In fact, please don’t.) Just take one more step than you have previously. Does it seem to have been well received? Maybe one more after that.

Don’t convince yourself there’s no way they could possibly be interested in you. Ask them out. It could be awkward, but it could be great. If you feel like a complete idiot trying to flirt, just talk enthusiastically about stuff you both like. Don’t be reticent. Once you’re hanging out having fun talking about stuff, you’re half way there anyway. Be fearless.