Karma Or Just The Realization That Affirmative Consent Never Made Sense?

Forget that Joe Biden is the vessel wherein the problem arises for the moment, but consider the problem itself.

Is Biden a faux-feminist sexual predator? Of course not. Yet under the modern standards he has championed, he would deserve condemnation. His intent doesn’t matter; neither does the fact that many women welcomed his affectionate gestures. (Biden himself has asserted that consent requires an explicit, “Yes, it is okay to touch me,” in which case all of his physicality is non-consensual.) Nor does it matter that some of his accusers took a while to be offended.

I believe Biden’s championship of women is sincere. Daily Beast columnist Danielle Tcholakian dismisses it as “benevolent sexism” more than feminism — chivalry, not equality.

Creepy sex predator or warm, affectionate human being? The reason the question arises with Biden is twofold, that he could end up the Democratic nominee for president and the anti-Trump forces are being somewhat cautious about destroying their last, best hope to oust Trump, and Biden has done yeoman’s time in the trenches pushing their cause, creating at least the facade of a bona fide feminist ally. Eating their own has become a sensitive point, hungry as the forces of wokeness may be.

But as Emily Yoffe notes, this same guy was the point man person pushing the paradigm shift giving rise to this dilemma:

Among the cultural shifts orchestrated by the Obama administration was the assertion that evaluation of campus claims of sexual harassment and assault rest on the subjective feelings of the accuser. That meant it was irrelevant whether the accused had an intention to abuse, harm or offend. This was codified* in 2013, with the joint release by the departments of Education and Justice of what they called “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” An analysis by the Foundation for Individual Rights in Education, a civil liberties group, found that the administration had abandoned the principle that claims of harassment should be evaluated based on an “objective” or “reasonable person” standard.

This was a critical change, and one that I would have expected lawyers, at the minimum, to appreciate. Particularly criminal defense lawyers, at least as far as my favorable bias toward my colleagues goes. After all, would they not be the first to argue, properly, that a person cannot be held to account for an offense when they have no notice of what conduct is prohibited, no definition of what the wrong to be prohibited might be?

The simpleton replies, “but don’t rape, but don’t harass, what’s so hard to understand?” At the top level, the question is what does the word “rape,” the word “harass,” mean? As these words once held meanings, at least to some extent, but have since become untethered from any cognizable definitions, they are now reduced to mere conclusory epithets. Of course rape is horrible, because it’s rape. Harassment too. But what are they?

At the next level, the best possible answer is “non-consensual” conduct, whether penetration, touching or, well, other stuff.  Seems easy enough, and it’s the petard upon which Biden falls. His affection was given without his first seeking consent, enthusiastic or otherwise. The point is that people who forgive Biden his trespasses because he’s affectionate rather than grandpa creepy look to his intent, that he meant no harm.

But Emily’s point is that the intent of the actor isn’t relevant anymore. It’s the feelings of the recipient that define whether sex, touching and, well, other stuff, makes the act an offense. Some of the folks Biden touched were fine with it. Others, not. While ulterior motives may play a part in their post-hoc condemnations, the substantive difference is the level of sensitivity of the person being touched. Some are particularly sensitive, and so any touch will be deemed offensive, while others are made of sterner stuff and can tolerate a hand on their shoulder without crying “sexual assault!”

But how was Biden to know the level of sensitivity of the recipient of his affection? How would he know that he could plant a friendly and totally not sexual kiss on Sarah’s cheek but not Lucy’s? The obvious retort is that it’s a kiss. Clearly, a kiss is over the line, even a friendly one.

But then there’s the hand on the shoulder, or the knee. Is that the line, that no person should touch any other person without express consent? That would be an objective line for the actor to use to guide his conduct so as not to violate another person’s physical integrity, if that person was so sensitive as to find the touch offensive.

But we’re not done yet, as Joe Biden was the vice president, and Lucy Flores was a candidate running for office who sought, needed the veeps endorsement to the extent she wanted to have any chance of winning. So even if Biden had asked for consent, how could she say no? How could she risk offending Biden by responding, “keep your creepy old man hands, and lips, and nose, away from me”?

Had she given express verbal consent at that moment, was it really consent or merely coerced acquiescence? And this assumes she hadn’t imbibed, which would have relieved her of any agency to consent, since everyone knows people who have ingested a substance that could alter one’s thoughts, release one’s inhibitions, are incapable of consenting.

Or would it not have been clearer had the mechanism by which offense would be taken was a simple “no,” clear and timely, thus preventing whatever trauma that might be felt by even the most sensitive soul, no matter how benign or creepy the actor’s purpose might be?

The offense is neither better nor worse because of the availability of a rhetorical excuse for its condemnation or excuse, but it can’t be avoided if no one is clear on what the offense might be or how to ascertain whether ordinary human conduct, inflicted without any purpose to do harm, crosses the line. And even so, whether the line is fixed or in constant motion, even moving days, years, later, based on a perfectly fine excuse, but one that does nothing to alert the actor to the offense at the time, and in fact informs the actor that it’s not an offense at all?

If Biden’s conduct isn’t merely a matter of karma biting him in his woke butt, but a realization that we’ve been playing with an entirely untenable set of rules based on the feelings of the recipient rather than the conduct of the actors, this could prove a worthwhile turning point no matter what becomes of his candidacy. And it might actually help people by providing a viable rule for those who intend no harm and respect others.

Nobody has to be touched by Biden, or anybody else they don’t care to be touched by, but just say “no” if that’s what you want, and then survive the consequences, whether it’s denouement or silence. These are rules we can work with, and if Biden ends up being the means to expose the fallacy of affirmative consent, then he will have finally accomplished something useful.

*The use of the legalish word “codified” is unfortunate, as it suggests that it was lawfully enacted and made a part of the Code. It was not. Memorialized would be more accurate, as some bureaucrats put it into a letter that was never subject to congressional or even regulatory approval.

25 thoughts on “Karma Or Just The Realization That Affirmative Consent Never Made Sense?

  1. Pedantic Grammar Police

    It would be great if the Biden affair forced the #metoo-ers to admit that they are full of shit, but the idea that he is an electable candidate who could beat Trump is nonsense. If it was only adults then maybe they could rehabilitate him, but what about the little girls? Children can’t consent, and his creepy fondling uncomfortably close to little girls’ private parts is prohibitively toxic. He has been playing “Emperors New Clothes” for decades now, with everyone pretending that everything is fine, ignoring the serial groping. Now that he has been called out, his political career is finished, especially with Trump in the mix.

    1. SHG Post author

      This post wasn’t really about Biden at all, as was explicitly clear, but don’t let that influence whatever shit pops into your head.

      1. Pedantic Grammar Police

        Wasn’t it? Biden is one of the more important influences behind the #metoo movement. He is one of the most powerful men in the world, and his influence made a big difference. Without Biden, #metoo might have been recognized as nonsense.

        And why is Biden ‘one of the staunchest “feminist allies” in American politics?’ It is a Faustian bargain with the feminists. He is their ally, and they don’t call out his creepy behavior.

        It would be poetic justice if this Faustian bargain put Trump back in the White House. Democrats and feminists already put him there once; now they are poised to do it again. Trump voters aren’t necessarily voting for the wonderfulness of Trump; they are voting against the #metoo crowd, and this Biden debacle plays right into his tiny hands.

        1. SHG Post author

          If I said it wasn’t the first, was that an invitation to double down and argue the point? Over the past few days, this is the third post that mentions Biden, which was frankly more space than Biden is worth. Either of the other two posts were more Biden-focused. Either of the other two posts might, arguably, have been an opportunity to slam Biden. Just not this one. But what do I know, as it’s only my post and blog, which doesn’t seem to count for much these days.

          1. Grant

            The post was not about Biden. It was about gravity knives.

            And how ‘rape’ and ‘harassment’ and even ‘consent’ have all the definitional clarity of NY gravity knife law.

            And how Biden has been carrying an affirmative consent gravity knife for years without knowing it.

    1. henry

      Took me 6-7 seconds to get it, but posting this song here (with its title) is the funniest thing I’ve seen all year. You have won the internet.

  2. B. McLeod

    Biden has indicated that he sees he must “modify his behavior,” so it looks like he is still trying to go with support for “affirmative consent,” but this simply leaves hanging the issues raised by the numerous sexual assaults he has committed if one applies that standard. I suspect he will ultimately find this to be a minefield he cannot navigate.

      1. B. McLeod

        And that part is irreconcilable with the “affirmative consent” standard, leaving a hill he can’t defend if anyone decides to push this.

  3. Anonymous Coward

    The optimist in me hopes this is the beginning of a return to sanity and firmly moored objective definitions of rape, and harassment. The realist says the woke will just add an asterisk for political affiliation and intersectionality points so their tribe gets a free pass.
    As an example, compare the clamor over Brett Kavanaugh, and the silence over Justin Fairfax.

  4. B. McLeod

    Well, hold the phone! In follow-up coverage today, which refers to Biden “brushing off” the prior incidents with “hugging jokes,” Biden openly mocked the notion of affirmative consent.

    1. SHG Post author

      Did he? He made some jokes, but was that for his own benefit or about affirmative consent? It remains to be seen.

  5. David R

    I work with a large international clientele. Try dealing with someone who is obviously Vietnamese, speaks with a barely understandable Scottish brogue, grew up in the Hebrides, and lives and works in France. Do you bow, shake hands, or kiss cheeks. I’ve found the easiest is to not touch without invitation, and be fast on your reaction time.

    1. SHG Post author

      An excellent point, that cultural differences get very weird, between kisses (one, two or three), handshakes, etc. You offend one way or another, but it’s often not entirely clear whether you’ve committed an offense.

      1. Phv3773

        Perhaps a returned to a more formal, stylized etiquette where A doesn’t talk to B until introduced by mutual acquaintance C who can inform A of B’s preferred pronoun and cultural preferences.

  6. Julia

    Likewise, a woman can find one man’s touch offensive while another man’s touch pleasant. And even if she doesn’t get offended immediately, she can find the touch offensive years later. Subjectivity doesn’t have any timeframe.

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