So I have a new Reason.com piece up about the pending California bill that would require colleges to use an “affirmative consent” standard in adjudicating sexual assault complaints and I have my critics on Twitter (see here and here).
One of the arguments is that “affirmative consent” would be a useful standard in cases where someone is coerced into unwanted sex and doesn’t say no because s/he is paralyzed by fear.
Here’s why I think “affirmative consent” is entirely useless in such cases.
(1) If a man has sex with a woman who is paralyzed by fear (I’ll just use the “conventional” male perpetrator/female victim scenario here, since this is what the laws are clearly targeting), he knows perfectly well that she’s not a consenting partner. He’s a sexual predator, not a clueless guy making an innocent mistake. If he’s brought up on charges of sexual assault, there is nothing whatsoever to stop him from lying and saying that she said yes. It’s going to be a completely unprovable he said/she said case.
(2) If a woman is too intimidated to say no to unwanted sex, she can also be easily intimidated into saying yes under “ask first” rules. Some years ago, I got a large stack of documents from a guy who wanted me to write about his case claiming to be a man wrongfully jailed for rape. One of the points he stressed in his letter was that he actually asked the woman if she wanted to have sex and she said yes. However, when I reviewed the documents, it became pretty clear that this verbal exchange took place in a situation where the woman had very good cause to feel threatened (I forget the details–this was some 15 years ago). So the emphasis on expressed consent can actually be bad for victims if takes the focus off questions of force and threat.
One of my Twitter critics says that affirmative consent laws won’t compel anyone to accuse anyone else of rape. No, they won’t. But they can coerce a lot of people into unwanted and awkward “communication” about sex. And yes, in some cases they can encourage a person who has had an unsatisfying or emotionally traumatic sexual experience (e.g. sex followed by rejection) to reframe it as sexual assault in their own mind afterward.
The bottom line? As long as there is no force, threat, or incapacitation, the government has no business dictating to adults how to have sex. Period.