Now, they are back, seeking even more power over people’s private lives. Activists quoted in the Huffington Post now want to extend this “affirmative consent” ideology, and its pinched, misleading definition of “consent,” beyond college into K-12 schools, and beyond sexual activity to non-sexual touching and unwanted remarks, to teach people the sinister evil of things like “unsolicited hugs.” (My wife and daughter hug me without asking for permission, and sometimes it’s a surprise — a pleasant surprise, even if I never “agreed” to it.). Once busybodies start meddling in your personal life, it’s hard for them to stop.
The meddling won’t stop at the schoolhouse gate, and will eventually reach into your private life, too. As lawyer Scott Greenfield notes, progressive law professors have submitted a controversial proposal to the American Law Institute that the Model Penal Code be radically changed to require affirmative “consent” throughout society, for both “sexual intercourse” and a broader range of “sexual contact.” On page 69 of their draft, they explicitly admit that this affirmative “consent” requirement would classify as sexual assault even many “passionately wanted” instances of sex (presumably because of the technicality that such mutually-wanted sexual intercourse is welcomed after — not affirmatively consented to before — the sex is initiated). Perversely, they justify this massive invasion of people’s sex lives as supposedly protecting people’s sexual “autonomy” from potentially unwanted sex, even though their proposal goes well beyond banning unwanted sex, to banning sex that was in fact “passionately wanted” although not agreed to in advance. See Model Penal Code: Sexual Assault and Related Offenses, Tentative Draft No. 1 at pg. 69 (April 30, 2014).
A supporter of “affirmative consent” legislation crowed that it requires “state-mandated dirty talk” during sexual encounters. Some colleges with “affirmative consent” policies classify even ordinary “kissing” as “sexual activity” that can constitute “sexual assault,” notes Ramesh Ponnuru at Bloomberg News, while other colleges define it much more narrowly. (A controversial survey claimed one in five college students was a victim of sexual assault, but only by defining “sexual assault as everything from nonconsensual sexual intercourse to such unwanted activities as ‘forced kissing,’ ‘fondling,’ and ‘rubbing up against you in a sexual way, even if it is over your clothes.’” That survey was an unrepresentative sample of students from just two colleges. A more recent, representative national study, “published by the Bureau of Justice Statistics . . . found that rather than one in five female college students becoming victims of sexual assault, the actual rate is 6.1 per 1,000 students, or 0.61 percent,” many times lower, and the rape rate is 2 per 1,000 students. That means that less than one percent of female students will be raped while in college.)
Having successfully inflicted the “affirmative” agreement concept on college students, they now want to inflict it on society as a whole, and to extend it well beyond sex to ordinary touching and affection. “It’s better to focus on everybody, not just the few who attend universities,” Meghan Warner, director of the Associated Students of the University of California Sexual Assault Commission and a UC Berkeley student who endorsed the demands, told The Huffington Post. “Consent is not just for intercourse. It’s for all aspects of our lives.” “Concerned parents might think we’re talking about consent in purely sexual context, when really we’re talking on a day-to-day basis,” Alejandra Melgoza, a Take Back the Night coordinator at UC Santa Barbara, told Huffington Post. “Keep your hands to yourself,” she said. “Traumatic memories of child abuse may be triggered by an unsolicited hug, so students could be taught to . . . “acknowledge people’s space.”
Ezra Klein, a former Democratic operative and leading supporter of California’s “affirmative consent” law, says it will define as guilty of sexual assault people who “slip naturally from cuddling to sex” without a series of agreements in between.
“It tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test. The ‘Yes Means Yes’ law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value. . . If the ‘Yes Means Yes’ law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it. . . Men need to feel a cold spike of fear when they begin a sexual encounter. . . To work, ‘Yes Means Yes’ needs to create a world where men are afraid.”
One advocate of “affirmative consent” policies describes the awkward and sexually graphic commentary it leads to. This male feminist says that if it’s not feasible for a man to discuss every individual touching of a woman’s intimate areas in advance (as some “affirmative consent” policies literally require for couples taking things on a step-by-step basis), he should instead ask for consent to a wide array of touching in advance: “I hope to run my hands, [etc.,] all over your body. . . .I need to know that if I start to touch you in a place you’re not comfortable with, you’ll just tell me to stop, and we’ll stop immediately. You’ll feel okay, you won’t feel assaulted.”
How many women would ever want to hear something so creepy from their date? It would freak many women out, and few men could bring themselves to say something so awkward (except maybe an egotistical jerk doing so on a dare). Men who have tried to incorporate “affirmative consent” into their own personal life have generally found that it doesn’t work: It winds up offending women by leading to all sorts of awkward requests for consent. The Atlantic quotes the comical misadventures of a man raised by feminist parents who tried to follow “affirmative consent” in his relationships, annoying women in the process.
We earlier described constitutional violations that could result from California’s “affirmative consent” law, such as violations of First Amendment limits on compelled speech, undue interference with privacy rights, and potentially the creation of a sexually hostile educational environment in violation of the Fourteenth Amendment.
The “agreement” requirement advocated by “affirmative consent” supporters is misguided. Lots of consensual acts — like sending someone a Christmas gift — occur without any prior “agreement.” Some “affirmative consent” supporters want to go even further, to explicitly rule out non-verbal consent or agreement to sex. Some left-leaning California newspapers have advocated that sex be treated as “sexual assault” unless the participants discuss it “out loud” before sex, and “demonstrate they obtained verbal ‘affirmative consent’ before engaging in sexual activity.” (Never mind that consent to most sex is non-verbal, and that rape has historically been understood to be an act against someone’s will, rather than simply non-violent but unauthorized sex.)
By contrast, the Los Angeles Times and Orange County Register opposed California’s “affirmative consent” law, as did the Foundation for Individual Rights in Education, former ACLU Board member Wendy Kaminer, and columnists like Bloomberg News’ Megan McArdle and The New Republic’s Batya Ungar-Sargon.
Hans Bader is a senior attorney at the Competitive Enterprise Institute.