An Anti-Rape Measure Too Far–in California no Less?

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A man and a woman are bantering with increasing verve in an art studio. While perhaps twelve feet apart, the man suddenly announces his intent to walk over to his interlocutor and kiss her–unless she unmistakably says “No.” She is silent and motionless as he follows through on his “threat.” Is there anything wrong with this picture? Should the long arm of the university intervene?

The movie “Words and Pictures,” from which the hypothetical derives, suggests no: This is contemporary romance, and the parties indeed proceed to a torrid affair. And yet, influenced by a pronouncement by the Office of Civil Rights of the U.S Department of Education and by disturbing reports that one in five women will be sexually assaulted while in college– and that such behavior often arises out of insufficient attention by men to their partners’ words and signals– the California State Senate recently passed a bill (#967) which, as now amended, would require that “sexual activity” in colleges be preceded by “affirmative, conscious, and voluntary” agreement. The consent, not necessarily verbal, must be “ongoing throughout,” and any “lack of resistance” or “silence” will not constitute such consent. The burden of proof is on both parties. Violators would be subject to sanctions, including presumably, expulsion.

Supporters of legislating “affirmative consent” believe that the change will enhance female safety and perhaps autonomy; and, indeed, there is every reason to think that it will produce less unwanted sex.

Opponents argue that: 1) affirmative consent is not how sexual partners have historically joined together; 2) proving what conversations and actions are taking place behind closed doors is already a serious administrative headache, and universities have neither the financial resources, the expertise, nor the inclination to police “ordinary” sexual intercourse between students; and; 3) contract sex cannot be as satisfying because, the affective aspects of sex notwithstanding, copulation is at the core an animal act, and animals do not enter into contracts. The bill, in this light, can best be seen as overreach.

Precedent and theories of creatureliness will not dispose fairly of the problem that legal affirmative consent is designed to address. Big problems may require big changes. Fortunately, data are available to help us. In a classic study, Professor Charlene Muelenhard asked men and women how they showed that they were consenting to sex. The options were “direct verbal,” “indirect verbal,” “direct nonverbal,” “indirect nonverbal,” and “no response.” “No response” was modal for both men and women; that is, no direct or indirect method garnered a majority of the vote. When it comes down to it, we talk about all aspects of our lives except for doing the nasty. Unless we are inclined against sex, moreover, many of us just give in. Not the most exalted picture of self-consciousness and sexuality, perhaps, but there you have it.

The finding with respect to women may be understandable. When asked by the same researcher about their hesitation to say saying “yes” when that is what they meant, women cited fear of “appearing promiscuous,” “religious or moral reasons,” “uncertainty about a partner’s feelings,” and “self-consciousness/embarrassment about their bodies.” Consenting obliquely—i.e., not explicitly—might be a way of getting pleasure while simultaneously dissociating from the psychological implications. It is perhaps for this same reason that the men in the study also preferred not to refer directly to anticipated sex. If a man wants to guarantee failure in the mating game, advises a well-known law professor, he should go up to a woman and ask, “Do you want to [have sex]?”

In yet another study, Professor Muelenhard distinguished between consent to sex and desire for it. The concerns of women discussed above may block real desire. She reports, moreover, that desire for sex is not either-or, as we may think; women may want sex, but again not its ramifications. Because, especially for women, consent and desire may point in opposite directions, she wants us to understand rape as including undesired sex. Communicative sex under Bill 967 would presumably help identify unqualified desire.

The problem for the law is not so much to determine the level of women’s desire, although that is no easy task. It is, more, to determine the extent to which that desire should be given legal effect when it cuts against consent, as currently understood. Like all decisions we make, sexual decisions are the product of a cost/benefit analysis. The costs will take the form of lingering private reservations even after an affirmative decision is made. If the law says that only whole-hearted agreement qualifies as consent, if a woman is presumed not to know or to be able to speak her own mind in a sexual setting—if she cannot say no sexually and be held to it— is she able to make big decisions in a managerial or a political environment? An atmosphere free of threats and fear is, of course, assumed throughout this discussion.

Far from increasing women’s autonomy most of the time, then, “communicative sex” would likely decrease it. Most relevant for our purpose here, it would operate to drive out sex that is more desired than not. This suggests that men’s desires may not be important in evaluating Bill 967. If Muelenhard is on the mark, women will not accept being forced to say yes. A code that does not honor college women’s views is no honor code.

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Dan Subotnik, a professor at Touro Law School, has written several law review articles on affirmative consent. These are cited on the school’s website (Tourolaw.edu). 

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