Affirmative consent: a crime against liberty

I’m a feminist, or so I have always thought, given my decades of advocacy for unqualified sexual equality and reproductive choice. But according to feminist matriarch Gloria Steinem and sociologist Michael Kimmel, I am in fact an ‘opponent of women’s equality and their right to make decisions about their own bodies’. Why? Because I oppose California’s new affirmative-consent law governing sexual conduct on college campuses.

Why is support for this legislation a test of your commitment to equality? In a recent New York Times op ed, Steinem and Kimmel describe the requirement that each person involved in a sexual encounter obtain ‘ongoing affirmative consent’ as the only reliable defence against legalised rape. ‘Only an explicit “yes” can be considered consent.’ Feminists who have long demanded that government stay out of the bedroom are now inviting it into the dorm room.

I wonder: have Kimmel and Steinem abided by this rule themselves, by requesting, receiving, and rendering ongoing affirmative consent throughout their many sexual encounters over the years? I doubt it, and I wonder too how any sexually experienced adult can reconcile legal theories of explicit, ongoing consent with real-life, human behaviour.

The sheer infeasibility of a ‘just say yes, over and over again’ rule has been the subject of some appropriately incredulous critiques. How will campus triers of fact determine whether an ‘explicit yes’ was repeatedly rendered, satisfying the ongoing affirmative consent requirement? Students are encouraged, not entirely satirically, to tape their sexual encounters or to obtain a series of signed consent forms as their activities progress.

Advocates of ongoing, explicit yes rules respond to these criticisms partly by explaining that the rules are intended to ‘send a message’ and ‘change the culture’. As the New York Times reports, ‘Many supporters of affirmative consent say its greatest power may lie in changing attitudes’.

This is a telling defence that implicitly acknowledges the impracticality of the new rules and the likelihood that few if any people will actually comply with them. It’s also a chilling defence that practically endorses arbitrary, discriminatory enforcement regimes.

During sex, the rules will be routinely and innocently violated, even some supporters effectively concede. But afterwards, if rape is alleged, the rules will be available to facilitate prosecutions, to the satisfaction of those who assume the guilt of students accused. ‘I think the disciplinary panels find it easier to find a student responsible for sexual assault’, a UCLA official told the New York Times, approvingly. ‘They can ask, “What happened that made you think consent was affirmative, unambiguous and conscious?”‘

How far we’ve regressed. A similar affirmative-consent requirement adopted by Antioch College in the early 1990s was widely mocked. Today that requirement is law in the trend-setting state of California and on track to become law in New York State. A policy generally viewed 20 years ago as one that no reasonable adult would support is now framed as a policy no reasonable liberal would oppose. It enjoys the endorsement of the New York Times editorial board and its reporters, who effectively advocate for self-proclaimed assault victims in ‘news’ stories. Education reporter Ariel Kaminer (no relation to me) has praised affirmative-consent rules for promoting sexual equality and keeping women safe: ‘Ideally these policies work to lessen the incidence of sexual assault.’ And requiring ongoing explicit consent ‘is sexier’, she added, echoing an emerging feminist talking point.

It’s worth noting that Kaminer felt free to document her support for affirmative-consent rules in a New York Times blog only a few days after authoring a news story about the pending adoption of the rules by New York’s state universities. Not surprisingly, her story failed to mention criticisms of affirmative consent or the controversies surrounding it outside the bubble of conventional liberal or progressive wisdom. Within that bubble, opposition to affirmative-consent rules is the equivalent of indifference to rape, if not effective support for it.

Once, authoritarian, right-wing officials hunted down suspected communists and communist sympathisers on campus. Mid-twentieth century red scares abated, after inflicting considerable damage, but the hysteria that shaped them always lies beneath and periodically erupts. Today, authoritarian, left-wing officials are targeting alleged sexual predators on campus, with similar disregard for civil liberty. California’s affirmative-consent bill and new Obama administration policies effectively presume guilt by requiring a minimal, ‘preponderance of evidence’ standard of proof in campus sexual misconduct cases.

Affirmative-consent requirements and the conviction bias underlying the new approach to alleged campus assaults practically ensure that students accused of sexual assault will be found guilty of it. Advocates for self-identified victims don’t regard this as an injustice because they believe false accusations of rape are extremely rare or simply theoretical, not actual, possibilities. They also tend to trivialise the consequences of guilty findings in campus cases: since campuses are not courts of law, advocates argue, students are ‘merely’ suspended or expelled, not convicted of crimes and subject to imprisonment. But they are labelled rapists and likely to be denied admission to other colleges and universities. Their educations and careers are derailed, at best. Innocent students wrongly accused of rape (and wrongful accusations are proffered) may be as traumatised as some rape victims.

This disregard for false accusations, based largely on the belief that they rarely if ever occur, reflects the assumption that accusers are women and accused rapists are men – an assumption implicit in Gloria Steinem’s equation of opposition to affirmative consent with opposition to ‘women’s equality’. But California’s affirmative-consent law is gender neutral, by necessity, as any affirmative-consent law must be. A law that required men to obtain explicit ongoing consent from women but did not require women to obtain explicit ongoing consent from men would be unconstitutional. Given cultural conditioning and stereotypes, it’s hard to imagine a man claiming that he was groped without consent by a woman, but it’s easy to imagine affirmative-consent issues arising in disputes between same-sex couples, male or female. In these cases, assumptions about male and female sexuality will not support presumptions of guilt.

Will feminists and other victims’ rights advocates reflexively ‘believe the victim’ when both victim and accuser are female or when both are male? I suspect not. Political correctness will be of little use in determining the truth or accuracy of accusations in cases involving same-sex couples, or transgendered people. Sexuality is fluid, gay and transgendered rights activists remind us, a perspective that could expose the injustices of an approach to sexual assault based partly on traditional sexual stereotypes.

But, in the meantime, activists focused on heterosexual relations who believe that affirmative-consent rules and minimal standards of proof are essential to the just disposition of rape claims will probably not content themselves with campus reforms. Gloria Steinem and Michael Kimmel, for example, insist that an ongoing ‘explicit yes’ rule is ‘completely logical, and fully consistent with adjudicating other crimes’. Why, then, should it only apply to colleges and universities? And if we’re supposed to ‘believe the victim’ on campus, why not believe her off campus, as well? Civil libertarians should take note: assaults on the fundamental presumption of innocence and due process in rape cases that begin on campus are unlikely to end there.

Wendy Kaminer is an author, lawyer, and civil libertarian. She will be speaking at the Free Speech Now! New York debate, ‘Should even hate speech be free speech?’, on 30 October at New York Public Radio HQ. To book your free ticket, click here. This is an expanded version of an article that first appeared on Cognoscenti.