“Mind if I take a look?” It’s Consent 101 for a cop, the seemingly innocuous question backed up by the implicit, or explicit, “you wouldn’t mind if you have nothing to hide.” We even have a name for it, submission to the shield. If some random dude asked for consent to search your car, you would have no problem telling him where to shove it. But a cop?
The problem isn’t that the police officer didn’t ask nicely. The problem is the implicit threat that a refusal is tantamount to an admission that you are concealing something, that you have just invited the next level of scrutiny from the cop. Will he then get a warrant based on some phony claim of cause? Will he arrest you? Will he beat you?
Even if you ultimately beat the rap, you can’t beat the ride. There are myriad bad things that can come of refusal, and you have no clue whether your exercise of your constitutional right to say no will produce a world of pain or, if the law goes as it’s supposed to go, an officer who responds, “Okay then, have a nice day,” and walks away.
Are you feeling lucky?
At Volokh Conspiracy, Eugene raises a parallel question of consent in the context of a Clark University assertion, which may or may not be official policy, and even if not, may or may not be sufficient cause of an allegation of rape, campus adjudication and penalty.
Coercion is the use of emotional manipulation to persuade someone to something they may not want to do – like being sexual or performing certain sexual acts. Examples of some coercive statements include: “If you love me you would have sex with me .”, “If you don’t have sex with me I will find someone who will.”, and “I’m not sure I can be with someone who doesn’t want to have sex with me.” Coercive statements are often part of many campus acquaintance rapes. Being coerced into having sex or performing sexual acts is not consenting to having sex and is considered rape/sexual assault.
So saying “If you don’t have sex with me I will find someone who will” is “coercion,” and thus means that any resulting sex is not consensual. This means that getting sex that way is “rape and/or sexual assault” (because it’s “coerced sexual contact”), and in particular may well be “acquaintance rape.”
Lines like this have been around forever. These lines can be alternatively characterized as sincere expressions of a guy’s sincere position in the sex dance or emotional manipulation intended to coerce a female into acquiescing to sex without consent.
Consent is clear permission between intimate partners that what they are doing is okay and safe. To consent to something — like being sexual — means you confidently agree to do it based on your own free will without any influence or pressure.
Consent has become a deeply problematic concept in the gender wars, burdened with adjectives like “enthusiastic,” or here, “confidently.” Using influence to persuade does not, per se, bear upon whether the decision was a product of free will. Every decision we make is subject to influence. How did that become a negative? When did the notion of free will become disconnected from persuasion? Did we not just go through a presidential campaign replete with persuasion, and quite a bit of pressure, and yet make our own choice when voting?
Compare the situation when a cop asks the seemingly innocuous question, “mind if I take a look?” What makes this a loaded question is what’s referred to as a power asymmetry. He can seize us. He can lie about what was said and, in our perception if not reality, get away with it. He has a gun. He can use it without much fear of consequences. We can do little about it. We can’t stop him. That’s power asymmetry.
There is, of course, the physical ability of a college male to physically overcome a college female. Academic theory aside, most guys are stronger than most women, and could, if they chose to do so, physically overpower women. There is a word for that. Rape. But if that was the concern, there would be no need to discuss the use of words as emotional manipulation, coercion. That the men are using words rather than force is the distinguishing factor.
The shallow explanation is that words can be just as coercive as force. It’s a corollary to words can hurt just as much as physical violence. It does not bear up to rational scrutiny. The point of force is that the woman is physically incapable of defending against it. When it comes to words, there is no reason why the woman isn’t capable of standing her ground, making her own choice, and, if she so desires, saying “nope.”
Some will claim the woman can’t do so for fear (according to many, they live in perpetual fear of almost everything, which is exhausting) that refusal will result in the use of force, as in all males are inchoate rapists who will ultimately engage in forcible rape if they can’t get what they want through emotional manipulation. This is an unprofitable discussion, since one can’t argue against baseless post hoc rationalizations.
Is the use of emotional manipulation the same as submission to the shield? It’s a closer call than would at first appear. Just as we impute the likelihood of a cop reacting poorly to a refusal to consent to a search, women will impute the possibility of the use of force to a guy’s reaction to their refusal to consent to sex. While it may well be argued that the former is far more likely than the latter, making the assumption of negative consequences more justifiable, assuming a cop will beat you for your refusal is still an assumption. Until he does so, it’s just a post hoc rationalization like women fearing men.
However, the power asymmetry is entirely different, unless one believes that women are too intellectually and emotionally weak to withstand the pressure of words. Unlike with cops, who are likely to be able to impose their will without consequences because of law and the presumption of credibility, a woman physically raped has significant recourse available, whether on campus or in court.
Perhaps Clark University co-eds are a particularly fragile bunch, incapable of withstanding the unbearable pressure of being cajoled into sex against their will by emotional pleas of males. To believe this to be true, of course, is to believe women are intellectually and emotionally incapable of being the equal of men, able to withstand their manipulation and tell them to shove it. Perhaps Clark University thinks so little of their female students, and therefore needs to protect them from being overwhelmed by guy’s words. The one-time hope of equality between the sexes appears to have been surrendered at Clark University to protection of the weaker sex.