How does classifying most consensual sex as rape help rape victims?

As a lawyer who has handled rape and sexual harassment cases, I can’t imagine how. But this radical result is what some want to happen in California.

In endorsing a bill in the California legislature that would require “affirmative consent” before sex can occur on campus, the editorial boards of the Sacramento and Fresno Bee and the Daily Californian 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 a non-violent act that they did not consent to in advance. Perhaps in response to the bill, the University of California, on February 25, adopted a policy requiring affirmative consent not just to sex, but to every form of “physical sexual activity” engaged in.

The affirmative-consent bill, Senate Bill 967, does not expressly require verbal permission to demonstrate consent, although it warns that “relying solely on nonverbal communication can lead to misunderstanding.”

But supporters of the bill are very clear about their desire to require verbal discussion or haggling prior to sex.

The Fresno Bee praised the bill because “it adopts in campus disciplinary cases the ‘affirmative consent standard,’ which means that ‘yes’ only means ‘yes’ if it is said out loud.” The Daily Californian declared that “the proposal’s requirement that defendants in a sexual assault case demonstrate they obtained verbal ‘affirmative consent’ before engaging in sexual activity makes SB 967 a step in the right direction.”

Since most couples have engaged in sex without “verbal” consent, supporters of the bill are effectively redefining most people, and most happily-married couples, as rapists. By demanding verbal discussion before sex, they are also meddling in people’s sex lives in a prurient fashion. (Whether consent is explicit is often inversely related to whether sex is really welcome, with grudgingly consensual acts often being preceded by more explicit discussion and haggling than acts that are truly welcomed and enjoyed, as I explain here).

Requiring people to have verbal discussions before sex violates their privacy rights, under the logic of Supreme Court decisions such as Lawrence v. Texas (2003), which struck down Texas’s sodomy law, and federal appeals court decisions like Wilson v. Taylor (1984), which ruled that dating relationships are protected against unwarranted meddling by the Constitutional freedom of intimate association.

It also serves no legitimate purpose, since even supporters of the bill, like Tara Culp-Ressler have on other occasions admitted that sexual violence is not the result of mixed signals: studies show that people who commit sexual violence are almost always aware that what they are doing is against the will of their victims, rather than the assault being the product of “blurred” communications.

Defining sex as rape merely because there was no verbal discussion in advance trivializes rape and brands innocent people as rapists (including some people who themselves have been sexually victimized in the past).

Disturbingly, it’s not just sex they want to regulate, but also “sexual activity” in general. The bill may require affirmative consent before multiple steps in the process of foreplay that leads to sex, even between couples who have engaged in the same pattern of foreplay before on countless occasions.

The bill states:

“’Affirmative consent’ is a freely and affirmatively communicated willingness to participate in particular sexual activity or behavior, expressed either by words or clear, unambiguous actions. . . The existence of a dating relationship between the persons involved, or the fact of a past sexual relationship, shall not provide the basis for an assumption of consent.”

This disregards common sense, since what people intend or consent to is often illustrated by the history or nature of their relationship, such as when courts determine the intent of the parties to a contract by looking at the past course of dealings between the parties.

In addition to endangering privacy rights, SB 967 also contains provisions that could undermine students’ due process rights, such as mandating a low standard of proof for discipline, and encouraging anonymous allegations, as I explained in a letter published last month in the Sacramento Bee. The bill’s requirements apply not just to public colleges, but also to certain private colleges.

On February 25, the University of California system appears to have essentially adopted most of the requirements of SB 967, in a new policy defining “sexual assault” and “sexual violence,” to include some conduct that is not violent at all.

What concerns me most is that the policy defines “sexual assault” to require “unambiguous” “affirmative” consent prior not just to penetration (which is not always unreasonable if consent is defined to include non-verbal cues as well as verbal responses), but also “physical sexual activity” in general.

Effectively, this might ban foreplay as it commonly occurs among married and unmarried couples alike, as I explain in more detail at this link.

Yet, the University of California policy says:

“Sexual Assault occurs when physical sexual activity is engaged without the consent of the other person or when the other person is unable to consent to the activity. . . .Consent is informed. Consent is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. . .Consent means positive cooperation in the act or expression of intent to engage in the act . . . Consent to some form of sexual activity does not imply consent to other forms of sexual activity. Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion. A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. . .Consent must be ongoing throughout a sexual encounter.”

Although this language is vague (at one point, it allows consent to be based on “positive cooperation,” which might extend beyond consent in advance), it clearly defines some sex and sexual activity as sexual assault on campus, even if it would be perfectly legal off campus (it does so even more clearly than SB 967 does).

It does that even though college students are largely adults who have the right to vote, get married, and serve in the military. For example, students have First Amendment rights that are largely “coextensive” with their rights in society generally, as the Supreme Court has indicated in decisions such as Papish v. University of Missouri Curators, Healy v. James, and Rosenberger v. University of Virginia. (Disclosure: I used to practice education law for a living.).

The assumption seems to be that California’s general definition of sexual assault, which applies off campus, is too narrow. But this assumption is dubious, and in a few rare situations existing law is already too broad, as I discuss here.

(Featured Image: YouTube – Sex Consent – The Legal Take On Love)

Hans Bader is a senior attorney at the Competitive Enterprise Institute. Before joining CEI, Hans was Senior Counsel at the Center for Individual Rights. Hans blogs regularly at the OpenMarket.org and is an occasional contributor to Legal Insurrection and College Insurrection.



