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Late last week, the first state bill to require colleges to adopt an “affirmative consent” model in their sexual assault policies passed the California senate unanimously.
This bill seeks to change the perfectly moral and behaviorally natural “no means no” standard of consent to sexual activity into “everything except an explicitly verbalized “yes” (along with the acquisition of positive evidence of the same that can be later presented just in case you are ever accused of anything untoward), means “no”.
Let us be absolutely clear what such a rule does and does not do. It does not require that sex always be consensual. That is already the law and the policy of any sane institution. Rather, this bill seeks to make most heretofore consensual sexual activity between adults punishable by requiring a specific form of consent – explicit agreement to a specific request.
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Consider an ongoing sexual relationship. Does explicit consent have to be given for the 200th sexual encounter between the couple? And if so, how should it be recorded? That there is clear implied ongoing consent of a kind that stands behind most sexual encounters among human beings is not a prescriptive statement or a normative one: it’s just a recognition of reality. California is thus making normal sexual encounters – of which the sexual act is the culmination – punishable.
Of course, relationships can end and the contextual element of consent can thereby be changed. But consider a relationship that ends acrimoniously. By California’s new bill, since the man cannot provide proof of explicit consent for that last sexual encounter, he has, a priori committed an offense if the woman seeks to declare that an offense was committed. He is, in other words,
guilty until he can prove himself innocent. “Slippery slope” does not even come close.
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Defenders of such a rule might argue only that nothing is mandated because no one is forced to have sex. That would, of course, be to miss the point entirely, but let’s address it for completeness: if someone is willing to have consensual sex with me, then we have a natural right as human beings to engage in that activity, regardless of how we have expressed our willingness to do so. No public institution can impinge on that – or any other – natural right.
Let us generalize away from sex to focus on the principles at stake here.
If you were to say to me that I may not perform any other activity unless I communicate something to someone in a certain way, then you would not be protecting anyone from the outcome of that activity: you would be merely removing my freedom to engage in it with the positive purpose of controlling my communication. You would be preventing me from exercising a natural right, from being a normal human being, going about my business without harming others. This is exactly what happens in prison: which operates by firstly removing a natural freedom (to move freely, for example), and then requiring the incarcerated person to earn that right back in limited fashion as a privilege by performing positive, specified activities. I truly don’t wish to be over-dramatic or reactionary, and obviously the degree of infringement of freedom caused by California’s bill is not quantitatively comparable to that caused by imprisonment, but the principle must be starkly seen.
And what do we get for this basic violation of natural rights? Will California’s bill prevent campus rape? Under the bill, any dispute will still come down to she-said, he-said. Whereas a real rapist would in the past have tried to lie his way out by claiming “she consented to sex”, he will now lie his way out by saying, “she affirmatively consented to sex”.
So in the best case, California’s rule does nothing; in the worst, it punishes decent, sexually active adults and compromises natural rights.
Either way, it is dangerous. The passing of such a law gives lazy politicians and institutional officers the sense that a very real and serious problem has been taken care of when it has not at all. By defining consent so narrowly, non-consent is defined so broadly that its true instances cannot be identified. The genuine moral responsibility of educational institutions to identify actual sexual predators – and to engage in the self-examination necessary to identity the cultural causes of the presumed heightened prevalence of rape at the institution – is entirely abdicated.
Of secondary import is the negative contribution of such a bill to an even broader, if less dangerous, problem: men’s generational inability to understand women, with all those mysterious-to-men female modes of communication, all the ways they communicate their desires, all the ways they like to be made to feel like women, and the way in which everything on that list is mediated by context.
To summarize in British vernacular, “don’t bother with any of that, mate. Just get her to sign here”. That’s where we are going. A law that forces free people, harming no one, to do things they choose not to do can only be consistently enforced with repeated refinements to specify, in ever-increasing detail, the mandated action whenever a case is brought. Such law-making turns the real meaning of rights on its head. Just as all human beings have the (negative) right to the integrity of their bodies, they have the same (negative) right not to be forced to do things they do not want to do when they are harming no one.
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And meanwhile, the Californian government will be not only in your bedroom, but also in the conversation you have on the way there.
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More:
http://benswann.com/no-sex-please-were-californian/
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