The chorus of voices defending the law like to write about what sort of sex is acceptable and what sort is not. Amanda Marcotte, for example, assures us that:
The drafters understand, as most of us do when we’re actually having sex, that sometimes sexual consent is nonverbal and that there’s a difference between drunk, consensual sex and someone pushing himself on a woman who is too drunk to resist.
The real, and infinitely more difficult, issue is how a university disciplinary body makes an after-the-fact determination in the face of different versions of, or different perceptions about, what occurred. How does it ascertain-in the presence of conflicting stories-whether what happened was drunk, consensual sex or “someone pushing himself on a woman who was too drunk to resist?” How does it decide what possible demonstrations of nonverbal consent are sufficient to excuse the accused from punishment?
The affirmative consent standard does not further the quest for truth where one of the parties is a predatory liar, willing to tell falsehoods in furtherance of a malicious agenda. Nor does it add anything to the process where both parties tell the same story about an encounter that constitutes rape under existing criminal laws and procedures.
Those are not the cases that will be impacted by the new standard. Its target, rather, is those situations where the parties give consistent or reconcilable accounts of an encounter involving mixed signals and ambiguities; and they have divergent perceptions about whether it was meaningfully consensual.
How affirmative consent functions in such cases remains to be seen. Slate’s Amanda Hess, a defender of the law, concedes, “enthusiastic consent is often communicated in body language or knowing looks.” Is the university to determine whether the “knowing look” described by the accused constituted affirmative consent? Must it parse whether the accused elicited a gasp of pleasure versus an exhale of pain?
As Michelle Goldberg, blogging at The Nation, writes:
Now, most of us know what this kind of consent looks like in practice, but as a legal standard, it’s hard to imagine how it would be implemented. Do moans count as consent? How about a nod, or a smile, or meaningful eye contact? If a woman performs oral sex on a man without asking him first, and if he simply lies back and lets her, has she, by the law’s definition, assaulted him?
Thomas MacAulay Millar at the Yes Means Yes blog, does his best to clarify:
There are lots of ways to ask for a yes. If you lean in to kiss someone and they lean in to kiss you back, that’s yes. If you ask someone if they want your cock and they say, “I want your cock,” that’s yes, and if they put their mouth on it, that’s yes, too. If you’re fucking someone and holding them down and you’re both sweating and maybe bruised and you lean in and your hand is on their throat and you say, “can you still say no?” and they say, “yes,” that’s yes. We’re not kids here, right?
It is the last example I find most interesting. In this scenario, the accused (remember, the standard only becomes relevant if one of them ends up accused) leans in and, with his hand on the accuser’s throat, asks a question to confirm that the accuser can still say no. Then, having confirmed the accuser can still say no, the accused deduces from the fact that no has not been uttered, that it is all right to proceed.
How is that different from the old standard in which the absence of “no” was taken to be indicative of consent?
INSTITUTIONALIZES ASSUMPTIONS ABOUT THE FRAGILITY OF WOMEN
As noted, the standard does not enhance the quest for truth where one party is a criminal willing lie; the liar merely adjusts the lies to the new standard. Nor does it add anything meaningful where the accused admits conduct constituting rape under existing laws and standards. Rather, it is aimed at situations where one person has negative perceptions of the encounter, either during or after, but for any number of reasons did not effectively communicate non-consent-and the other person says, “I would have stopped if I had known.” It shifts the burden of avoiding the encounter away from the person who did not want it, but failed to say so, and onto the person who wanted it, but failed to ask.
If accuser cannot be held responsible for making preferences known and demanding they be respected, why does the accused have to shoulder that responsibility?
I suspect the reason has to do with the accuser usually being female and the accused usually being male. Just reading the copious text written in its defense confirms its proponents assume the standard it will function to protect women in their encounters with men:
The new California law will make it harder for men who enjoy having sex with the unwilling to argue that her nonconsent was “ambiguous” in order to escape punishment.
Looking for a woman who said “yes” (or any variation of it, which can be expressed in a variety of ways, both verbal and nonverbal) instead of focusing on whether she said no in exactly the right words will help put the role alcohol plays into focus. It will clear up some of the murky gray areas, such as cases where a woman is too drunk to be articulate in her refusals but not so drunk that she passes out. It will also offer a degree of protection for scared men, because a somewhat intoxicated woman who explicitly asks for sex will have a hard time convincing the courts she hasn’t “demonstrated intent” to bone. It’s an easy way to get more guilty men convicted while offering protection for innocent men.
“I had a friend who was like, â€˜I had sex with this guy and I was really uncomfortable-I wish I’d said something,’?” says Trina Bills, a student who graduated last year. “But she didn’t, and so he didn’t know. When she finally told him, he said, â€˜You should’ve told me. It would’ve been fine-we just wouldn’t have done anything.’ The communication aspect of this is real. And everyone communicates differently.”
Maybe I am wrong.
Maybe proponents of this standard envision it being used to expel young women from university, after they have expended extraordinary sums to attend, for having an encounter with a wasted male classmate, without pausing to be “Pretty Damn Sure” it was consistent with his sober, higher-order values and preferences. It seems more likely, however, that the standard will be used to revive, institutionalize, and perpetuate the age-old belief-now under new management-that the woman is the fragile partner in any sexual encounter with a man; and that for her, the default position should be no sex, because the consequences of anything less than wholehearted consent are all too terrible.
ELIMINATES SEX DISAPPROVED OF BY THE ORTHODOXY
Proponents will argue that there is no downside to this burden-shifting of responsibility to the higher-power party, of eliminating those sexual encounters where the power differential renders consent ambiguous or uncertain.
In an amazing essay for BookForum called “Fifty Shades of Beige: How E. L. James created an unlikely cottage industry in sanitized s/m,” Kerry Howley writes about French philosopher Georges Bataille’s description of eroticism as:
“[A]ssenting to life up to the point of death,” … about a moment of freedom from the prison of isolated existence, a moment in which an essentially discontinuous body might experience the kind of continuity with the universe we’ll all presumably find when our lives are over. In the erotic we bump up against the possibility of dissolution …
… There is in the erotic that hard jolt of coming undone, the “elemental violence,” as Bataille put it, “which kindles every manifestation of eroticism.” Where we find the erotic we find anarchy, an unraveling, a falling apart, dissolution. We find, as in the work of Sade, AnaÃ¯s Nin, and the pseudonymous Pauline RÃ©age, that a sexual frenzy spills readily into savagery.
Howley juxtaposes the narrative arc of Fifty Shades of Grey with the standard commentary on the success of the trilogy. In the book, the female protagonist “cedes control” and “allows a billionaire she doesn’t really know, and suspects is a sadist, to chain her to a wall in his â€˜playroom.'” As Howley recognizes, this “not behavior we associate with the ideals of self-preservation and delayed gratification.” Nevertheless:
The model Fifty Shades of Grey think piece…is a defense of the book…though these defenses do not extend to anarchy, or chaos, or ecstasy at all. In the Fifty Shades think piece, the book is a teaching tool, a means of instruction, Our Bodies, Ourselves with a stronger narrative drive.
Fifty Shades, we learn, is a force for “good” because it “gets women talking about sex.” It is good, we learn, because it “encourages a dialogue.” They should also visit sites like My Little Pleasure for sexual advice too. Fifty Shades, insists a panel of experts on The Dr. Oz Show, is an educative tool permitting healthy adult women to express their desires within the realm of companionate heterosexual marriage.
Howley insightfully recognizes that the dissonance, between what occurs in the book and the insistence it must be healthy for women, emanates from the needs of “anxious arbiters of cultural meaning” to “attempt to remove the erotic from the realm of the savage and claim it for civilization.” I see some of the same motivations at play in the debate about affirmative consent. The law functions as an effort by the collective to domesticate sexuality, “claim [it] for civilization,” and ensure it only occurs under carefully constructed circumstances deemed “healthy” by the enlightened.
Not everyone wants to live within those confines; some men and women enjoy life closer to the edge. A substantial number of both, for example, enjoy ravishment fantasies. Some of them live out these fantasies via role-playing in which consent is determined to be ongoing where a safety word is not uttered. This allows a participant to “protest” without bringing the encounter to an end.
Are university students allowed to engage in this type of role-playing? Can “affirmative” consent be proved by the failure to utter a safety word that is nothing more than a mutually agreed upon replacement for the word “no?”
Conor Friedersdorf of The Atlantic has posted a very interesting letter from someone claiming to be a recent graduate cataloguing his experiences with “affirmative consent.” The writer claims, for example that, on their second night together, one of his first partners, threw up her hands in disgust:
“How am I supposed to get turned on when you keep asking for permission for everything like a little boy?” She said. “Just take me and fuck me already.”
After repeatedly seeing disappointment in the eyes of his female partners when he did not fulfill the leadership role they wanted him to fill in the bedroom, he learned to take an assertive lead that involved proceeding unless he got a “no” (which included any nonverbal suggestion he was about to cross a line).
It would be easy to dismiss this as a man’s inability to correctly perceive what is really going on with women. But I know women who would agree with everything said in his letter. And who could forget this Best of Craigslist post, which appears to be written by a woman, calling men out for their increasingly beta male approach to sex? Speaking of beta males, it may be worth checking out sites like https://www.knowledgeformen.com/what-is-a-beta-male/, as not every guy with these traits are the same, even if some aspects may be similar. This is what some people forget.
Friedersdorf’s anonymous correspondent further claims to have, more than once, experienced situations where his partners put up “token resistance” that they wanted him to overcome. When Rush Limbaugh said something similar, he was lambasted. But yet again, I have personally known women, mostly of an older generation (but not all), who are most comfortable with a dynamic wherein the woman dutifully resists, thus demonstrating her purity, and then succumbs only after being seduced, thus confirming the man’s prowess.
Do I like that dynamic?
No. I find it grotesque.
But once we accept the proposition that only “healthy” sex deserves defending, the bedroom becomes yet another sanitized, domesticated landscape where people’s-and especially women’s-experiences are carefully managed by the cultural elites; where risks are discouraged; where optimal health is achieved via careful planning; where regrettable sex is forbidden alongside super-sized sodas, trans-fat and incandescent light bulbs; where barriers are erected to prevent us from treading too near the place of dissolution.
And feminism becomes the new Puritanism.
Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.