Will Affirmative Consent Metastasize?

Like kale chips before it, California is leading the way to the new world order of consent. Oh sure, the “Yes means Yes” in college signed into law, but what are the chances that it will fundamentally alter life at the rocket propulsion lab at Cal Tech, right? Sheldon?  Well, anyway.

While attention is devoted elsewhere, the California experience is proving to be difficult. It seems that many, women included, are finding affirmative consent unnatural. While rational people would recognize this failing to be the direct result of human nature and rational thinking, activists see it as both a failure to teach males affirmative consent early enough in life, and extend it beyond the confines of mere sexual relations.

In other words, they want affirmative consent to be a way of life.

Students “get to universities and we expect them to behave like they’re supposed to without any prior understanding of what consent looks like,” 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, and people aren’t understanding or being taught that,” Warner said. Consent education also covers verbal harassment, healthy relationships — romantic or otherwise — and being aware of people’s space.

The new slogan?  “Consent: Not just for intercourse anymore.”  Then again, the likelihood of “May I verbally harass you?” catching on is slim, but that’s not likely going to trouble activists.

“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 HuffPost. A major aspect of consent education is as simple as “keep your hands to yourself,” she said.

Parents have long admonished their children to “keep your hands to yourself,” usually with regard to hitting another child.  So what’s new about this?

“We have to start from very simple things, and that’s how we get to big things,” Melgoza said. For example, Melgoza said, traumatic memories of child abuse may be triggered by an unsolicited hug, so students could be taught to greet others appropriately and “acknowledge people’s space.”

Ah, the old trigger of traumatic memories of child abuse issue. Clearly, an issue so pervasive that a law is needed to protect the survivors.  Clearly, this epidemic of trigger touching in the ordinary course of life demands the two-fold cure of introducing feminist education from K-12 forward, because by college it’s too late to stem the tide of the patriarchy, and that affirmative consent laws need to extend beyond sex to all aspects of a “healthy” life.  Clearly.

Will this be the new definition of “assault,” to fail to obtain permission from whoever’s space is invaded by whatever anyone else does?  Thinking of a New York City subway, it makes stop and frisk look like a walk in the park rather than a ride on the IRT for cops looking to max out their overtime.

While many view the “yes means yes” push as just another ridiculous California notion promoted by a small cadre of pointy-headed progressives who seek to recreate human interaction according to their terms, the fact that it has found its way into law, even if limited to colleges, is a clue that it has gone far beyond another Governor Moonbeam joke.

It is, without question, spreading (note Governor Andrew Cuomo’s imposition for NYS schools), both in its sexual misconduct form and its permutations as applied to broader conduct.  While it may be somewhat distant when applied only to college students in crunchy California, it won’t be when it comes to a kindergarten near you, or you inadvertently find yourself too close to someone who starts screaming at you that you raped her space.

Crazy as all this sounds, the slippery slope is already in evidence at the hands of the UC Sexual Assault Commission, and the argument in favor is sadly quite straightforward: if people are to “understand” consent culture when it comes to stopping the epidemic of rape, then it must become a part of all aspects of their lives, and taught to them from childhood.  Are you prepared to be called a “rape apologist” for disputing or challenging this?  I didn’t think so.

Of course, if this extended as far as a police officer being required to inquire, “may I shoot you,” before pumping a magazine’s worth of bullets into a human body (talk about invading someone’s space), maybe there would be a counterbalance to the insanity these ideas would place on ordinary human relations. That, however, is unlikely to be included within the realm of consent culture, leaving us with the worst of all possible worlds.

For those inclined to be “understanding” of the concern, and feeling as if there ought to be some sort of vague middle ground where aspects of human interaction could be regulated via affirmative consent, while the ridiculous applications would somehow be avoided because, well, “that’s just ridiculous,” bear in mind that more laws, more criminal prohibitions and sanctions, more regulations, all require lines to be drawn between lawful and unlawful conduct.

So where would you draw the line? How would it be stated so that only bad conduct is prohibited before it reaches whatever point of ridiculousness strikes you as beyond the pale?  Perhaps when we consider that the foundation for affirmative consent even in sexual relations is built upon the fallacy of a rape epidemic that exists only in the new definition that rape is whatever a person decides it is, whenever she decides it is, this effort at social engineering at the end of a stick might not be quite so understandable.

H/T Hans Bader

 

17 thoughts on “Will Affirmative Consent Metastasize?

  1. Ricky N.

    [Ed. Note: There is nothing accurate in this comment, and no non-lawyer reading it should assume it accurately reflects anything whatsoever. Reading this comment makes one stupider.]

    The charge that an affirmative consent standard forces Californians to radically change how they have sex seems off the mark. California’s penal code appears to already contain an affirmative consent standard for rape. Cal. Pen. Code § 261.6 (2014) defines consent as “positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” By requiring “positive cooperation in act or attitude” it seems that situations where the alleged victim just lays there while someone has sex with her/him does not satisfy this definition. Rather the participants must demonstrate their willingness to participate, as opposed to not signal their rejection, in order for consent to exist.

    If I am right in my interpretation of the consent definition, (although I am a lawyer, I am not an expert or even very knowledgeable of California law) California colleges are making the right call in updating their sexual assault policies in so far as the definition of consent matches state law. I think everyone can agree that the state law and college sexual assault policies should mirror each other functionally. Perhaps the penal code should be changed, and on that point, I am agnostic.

    Finally, if I have interpreted the definition of consent correctly, I suspect that the fears of malicious prosecutions for sex that is not “male in se” rape are empirically denied. Perhaps, I am wrong or prosecutors do have the power to charge “male prohibitum” rape, but for whatever reason aren’t. But out of hundreds of rape prosecutions in California since 1990, some prosecutor should have gone too far at least once; this is the same state that has its infamous three strikes law. Yet for some reason, detractors against an affirmative consent standard have not pointed anyone out. Therefore, the lack of such a story is likely an indication of how wrong anti-affirmative consent people are about the effects of the definition.

    1. SHG Post author

      There is a reason why non-lawyers are not allowed to do legal analysis. My first impulse was to trash your comment, but you put a lot of effort into it and I felt badly about that. However, you are wrong and should never write a comment like this anywhere again. If someone reading this at a law blog thought you knew what you were talking about, they could do something harmful. Never write about law you don’t know about again. Don’t do harm.

      1. JB

        Thanks for adding that note to the comment. Not to beat up on Ricky, but non-lawyers really have no idea how much trouble their mistaken analysis can cause. I can’t tell you how many times people come into my office thinking they know the law because they read something on the internet. I understand that they like to get into the discussion, but you are so right that they can cause harm to people who don’t realize they’re completely wrong about the law. So thanks.

        1. pml

          But he claims to be a lawyer.

          “(although I am a lawyer, I am not an expert or even very knowledgeable of California law”

            1. Dave

              Maybe he does corporate law.

              I do criminal appeals and federal habeas (from the government side) so I get to see more than my fair share of people writing legal briefs who aren’t lawyers. Patterns appear where someone appears to get the wrong idea about the law based on someone else’s horrible brief and then it propegates and repeats. So the damage you speak of I see often. I really appreciate your policy of nipping such bad info in the bud. (As an aside what most often trips many up is the flowery language in case law that makes things sound so great in terms of due process protection and such that the unititiated don’t realize actually means nothing, they are just preamble boilerplate judges put into opinions before they say there really is no error or that the error is “harmless” so the defendants conviction is affirmed.)

            2. SHG Post author

              As an aside what most often trips many up is the flowery language in case law that makes things sound so great in terms of due process protection and such that the unititiated don’t realize actually means nothing…

              Amen. This drives me nuts as well, that amorphous quote from a dissent about “justice” that non-lawyers believe proves everything they want it to prove.

    2. Hans Bader

      Having practiced law in California (as well as having clerked in California for a judge), I disagree with Ricky N.’s interpretation of the reach of California criminal law. California rape law generally (but not always) requires a showing of force (not just lack of consent), although sex with an incapacitated or sleeping person also is illegal (although the definition Ricky N. cites from the California Penal Code defining consent applies in the limited circumstances when consent is relevant).

      Note that a clever college COULD similarly argue the California college affirmative consent law likewise only defines consent when it applies — rather than discarding the force requirement entirely — and such an interpretation would not explicitly contravene the text of California’s affirmative-consent law for college students, which narrowly defines consent, but does not explicitly state that consent is ALL that matters in sexual assault cases. While such an interpretation (treating some non-“consensual” acts as not being rape) is textually supportable, no college in California has done that, nor would it likely do so, since that would anger legislators by narrowly construing their legislation, and thus might trigger additional state legislation targeting colleges, under the theory that colleges are a “rape culture” that need to be targeted with special, stringent rules governing campus sex (a theory subscribed to by many of the bill’s legislative supporters, although not spelled out in its text).

      On another note, it seems that the definition of “consent” in California’s affirmative consent law for college students (SB 967) is narrower than the definition in the California Penal Code, which requires merely “cooperation” in act or “attitude” rather than affirmative “agreement.” Cal. Pen. Code § 261.6 (2014) .

      1. SHG Post author

        I was a little harsh with Ricky, but it scares the crap out of me that someone will read a comment here, assume whoever wrote it knows what they’re talking about, act upon it to their detriment. I can’t emphasize enough that someone who doesn’t know with certainty what the law requires should not offer legal opinions.

  2. Ross

    I will admit up front that I am not a lawyer (feel free to slap me down if I’m being an idiot), but it seems to me that this sort of law is very hard to enforce unless the parties in question make a physical record of their agreement before engaging in whatever act they mutually agreed to. Otherwise it’s he said, she said, and I do not want to be on a jury trying to settle that.

    1. SHG Post author

      You have fundamentally misunderstood the nature of who prosecutions happen, which is no doubt due to the fact that you’re not a lawyer. Laws are monumentally easy to enforce. A cop/prosecutor decides to enforce a law in a particular case, and thereupon does so. After that, it’s largely rhetorical.

  3. KronWeld

    Obviously if affirmative consent is ” … for all aspects of our lives …” then affirmative consent must be obtained before starting a conversation with someone. Of course, how you get affirmative consent to converse with someone without conversing with them is the question. Writing the question down and handing it to the other person? Well, what if they didn’t give affirmative consent for you to pass them a note?

    A slippery slope indeed.

  4. Nigel Declan

    I am baffled as to the origin of this bizarre notion, which unfortunately seems to be gathering steam, that people who engage in activities in a public, social setting have some sort of inherent right to dictate exactly who does and who does not interact with them and the specific manner in which any approved parties may interact.

    Extending the notion of affirmative consent to all interactions not only untethers it from its ostensible purpose – to prevent campus sexual assault and rape – but calls into question whether it was ever intended to accomplish that particular end, rather than a broader, more odious one.

  5. KP

    “”The person must …… have knowledge of the nature of the act or transaction involved.” ”

    Well, in the stance of Kronweld starting a conversation, this part of the law would stop anyone losing their virginity. You cannot have a knowledge of the act of sex without experiencing what it does to you, so you are starting from a disadvantaged position compared to your experienced partner and can have no inkling of what you are letting yourself in for.

    1. SHG Post author

      The concept is replete with internal inconsistencies, but that’s only the beginning of the problems with this absurd fantasy of micromanaging human interaction.

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