Friday, November 14, 2014

The Problems with Affirmative Consent

California recently passed a bill (SB 967) that requires colleges to adopt an “affirmative consent” model for addressing and defining sexual assaults and rapes on campus in order to receive state funding, and quite frankly, this bill is disastrous. In this bill, "affirmative consent" is defined as:

“...affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.”

Now this sounds like a great idea, and as far as individual people goes, it is a good idea: it's a good idea to know what your partner wants or doesn't want in a sexual encounter. However, affirmative consent laws are not good ideas, for the reasons given below. 

1. ACLs remove the presumption of innocence

“When bill co-author Assembly member Bonnie Lowenthal (D-Long Beach) was asked how an innocent person is to prove he or she indeed received consent, Lowenthal said, “Your guess is as good as mine. I think it’s a legal issue. Like any legal issue, that goes to court.””

“How can an innocent person prove their innocence?” (Which is a horrible question to have to ask in the first place)
I have no idea; let’s experiment with peoples’ futures.”

Under the affirmative consent model, falsely accused people will become falsely convicted people, unless they happened to videotape the encounter.

However, I am not only concerned for the college students who will be wrongly punished; I am also concerned that this may become the stepping stone for our legal system to adopt this model as well, which would be a tremendous violation of human rights: the complete reversal of innocent until proven guilty.

Indeed, several feminist writers have argued for this exact kind of shift: always believe the victim in a legal setting and reverse the burden of proof, including:

Jessica Valenti 

"Swedish rape laws ... go much further than U.S. laws do, and we should look to them as a potential model for our own legislation. In fact, some activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn't give it."

Linda Brookover - "Defining Rape", page 178

Brookover argues that the accused should have the burden of proving his innocence.

Susan Caringella - "Addressing Rape Reform in Law and Practice"

"It is high time to give victims a fair shake, to dismantle the zealous over-protections for men accused of this crime, which have been buoyed up by the myths about false accusations, ulterior motives, and so on, commonly embraced when rape charges are levied."

The writer of "Another Feminist Blog"
"The bottom line is that nobody bears the burden of convincing you their rape “really happened.” It is beyond noxious to think that as second or third parties we could sit back and judge the veracity of those claims, or that we should. When someone speaks about their experiences we listen. Period."

These are just some top-picks; if you go to Google and search for words like "feminism" "burden of proof" "innocent until proven guilty", you'll find a large population of feminists who want to reverse innocent until proven guilty. 

2. ACLs demand an unreasonably low standard of evidence for colleges

SB 967 requires that colleges adopt a low standard of evidence for determining if a sexual misconduct claim is true; it’s the same standard of evidence that the courts use in civil cases (which deal with things as heinous and life-changing as contract disputes).

“In evaluating sexual misconduct claims, SB 967 calls for schools to apply a “preponderance of evidence” standard, similar to Title IX. It’s a lower standard of proof, used in civil cases, instead of the “beyond a reasonable doubt” bar used in criminal trials.”

While colleges are not courts and cannot send “convicted” students to jail, expulsion as a sex offender can essentially bar them from higher education because other colleges won’t take them. This deserves a higher standard of evidence than what is used to settle contract disputes.

3. ACLs outlaw many consensual sexual encounters

Feminists and liberals in general (the latter of which I call myself) will point fingers at conservatives for their attempts to regulate what kind of sex people can and can't have, but when it comes to ACLs, those same feminists seem perfectly happy to outlaw certain ways of having sex. Why do I say this? Well, part of the law reads as follows, and it clearly outlaws sex in which both parties are not loud and active:

"Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time."

Well what if two people simply enjoy quiet sex, where the man "does all the work" and the woman enjoys just lying there? In this situation, the man didn't ask the woman if she consented during that time; she was silent and compliant, which does not indicate consent. Is that rape? According to the affirmative consent model, it is. Or, if the woman is doing all the work, and the man is silent and compliant, is she a rapist? According to the affirmative consent model, she is. ACLs lead us to conclude that unless you happen to enjoy loud, active sex, you are a rapist or a rape victim. This effectively outlaws many sexual activities that regular, consenting adults enjoy.

4. People give ambiguous signals, and what actually happened is often unclear (very important)

At “The Amazing Meeting” or TAM in 2014, Doctor Carol Tavris gave a talk called, “Who’s Lying, Who’s Self-Justifying?” in which she talks about awkward sexual encounters in college, which are often claimed to be instances of rape. In her talk, she explains how these situations arise, and in doing so, she explains why the affirmative consent model is absolutely horrible, even going so far as to specifically call out the state of California for proposing it.

Her talk is linked here, and the key time intervals are listed below.

24:42 - 25:36 -- People say “no” to mean many different things, even to indicate consent.
29:10 - 30:18 -- People do a “dance of ambiguity” to spare each other’s feelings.
30:18 - 31:20 -- A common signal of consent, AND of non-consent, is not doing anything.
33:41 - 33:55 -- Some women drink alcohol to create plausible deniability about their consent in case someone accuses them of being a slut; they intentionally blur the line.
34:35 - 37:05 -- Cognitive dissonance can create false memories about sexual encounters.
38:37 - 40:17 -- Dr. Tavris specifically denounces affirmative consent laws for the above reasons.

On a related note: some people have claimed that the song “Blurred Lines” promotes rape culture by saying that it’s okay to assume a woman wants sex. However, if that song means anything, it is explaining Tavris’s exact thoughts on the subject of sex: it’s saying, “Look, it’s okay to want sex. Drop this ‘good girl’ routine, stop saying ‘no’ to mean ‘yes’, and stop creating all these gray areas (or blurred lines) for me to interpret (or misinterpret), and just do what you want to do instead of beating around the bush.” Just a side thought. 

More recently, a woman wrote an article explaining how she found herself in a kind of awkward, semi-consensual, sexual encounter, which fits perfectly with Tavris’s general description, and which is hardly comparable to rape; it's just what happens to young, sexually-active people who are unsure of what they want or of what they are getting into. It's about testing your limits and exploring your sexuality, but sure, let's make it a crime.


Based on Tavris’s analysis, and the story linked above, it appears that the cause of the awkward  college hookups that affirmative consent laws are meant to eliminate (which many feminists insist are rapes)
 is peoples’ lack of awareness of how their minds work and what they desire in these situations, not a lack of legal structure or rules or "toxic masculinity".

Just like any other human heuristic, the solution for dealing with these awkward, quasi-consensual hookups to become aware of the things Tavris noted that we naturally want to do (such as spare others' feelings or create plausible deniability for ourselves), not to legally require people to act differently. Just because an action is a good idea for individuals to perform, that doesn't mean it is a good action to require by law. The same could be said of cheating on your spouse, or seeing through the diffusion of responsibility: while there are good ways for individuals to deal with these situations, it is very clear that these situations would not benefit from having legal force, just as affirmative consent laws will not benefit sexually active people. 

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