How does classifying most consensual sex as rape help rape victims? As a lawyer who has handled rape and sexual harassment cases, I have no idea, 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 Beeand 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.
I and my wife have been happily married for more than a decade, and like 99.9% of married couples, we do not engage in verbal discussion before engaging in each and every form of sexual activity. Indeed, in the first year of our daughter’s life, when she was a very light sleeper (she would wake up if you merely walked into her bedroom and stepped on a creaky part of the bedroom floor), it would have been unthinkable for us to engage in any kind of “out loud” discussion in our bedroom, which is right next to hers (the walls in our house are very thin, and you can hear sounds from one room in the next room). We certainly did not verbally discuss then whether to have sex. Having sex quietly when you are a parent is a sign that you are considerate of sleeping family members, and have a healthy marriage, not of sexual abuse.
The affirmative-consent bill, Senate Bill 967, does not explicitly 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.
Requiring people to have verbal discussions before sex violates their constitutional 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. When I was subjected to unwanted intimate groping as a child, the perpetrator knew quite well that what he was doing was inappropriate. 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.
The bill seems to be based on the false assumption that the more explicit consent is, the more pleasurable the activity consented to is. But in the real world, the opposite is usually true, and the explicitness of consent is not a good gauge of an activity’s welcomeness.
For example, my wife and daughter never ask for, or seek, permission before they hug me. Precisely because they know it would be welcome. Explicit consent is unnecessary when something is harmless and unobjectionable (or downright enjoyable, like sex between married couples).
By contrast, grudgingly consensual sex acts, like those between a prostitute and her clients, are generally preceded by explicit discussion and verbal agreement, because one party wants sex, while the other merely puts up with it to obtain money or other benefits. A verbal request followed by an explicit “yes” often reflects an imbalance in sexual desire between partners, not the ideal in which both partners deeply want it. Rather than disrupting the rhythms of a couple’s lovemaking by requiring explicit discussion, these people should recognize that an explicit “yes” is not the ideal. When I told one of my past housemates, a court reporter who has taken depositions in sexual harassment and assault cases, about a similar proposed definition at Harvard, where I got my law degree, she was amazed. She could not think of anything more awkward than being asked point blank for sex by a would-be partner.
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,” defining it 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. Things like vaginal intercourse generally are in fact preceded by non-verbal affirmative permission, since it generally requires physical movements by both parties to facilitate.
But most “sexual activity” falling short of actual intercourse (i.e., foreplay) is not preceded by affirmative permission or consent. Instead, it is often acquiesced in by the recipient as part of a process of gradual escalation in which each partner engages in a new form of intimate contact that that the other acquiesces in. For example (and I regret the necessity of providing these graphic examples, which are necessary for the sake of clarity), the husband starts touching or licking his wife’s breasts to see if she likes it and to turn her on, or the wife grabs the husband’s member while in bed with him engaging in foreplay (to get him firm enough for penetration), that might constitute sexual assault under this policy, even if it is welcome and enjoyed.
Why? because it is not preceded by “an affirmative . . . decision” to consent by the recipient, but rather is initially acquiesced in. The “consent” follows the activity, rather than preceding it, meaning the activity was potentially non-consensual for at least a brief time before the recipient became aware of it and consented to it. These activities are essential to foreplay, and are a step-by-step process that would be ruined by explicit discussion at every step (it would ruin the mood, thus defeating the very purpose of foreplay). My wife would be very annoyed if we verbally discussed these things. Thus, both husband and wife are defined as sexual assault perpetrators by this bill. Requiring consent in advance under these circumstances is sexually repressive and unfair. Foreplay is a long progression of steadily escalating intimacy in which each partner alternately initiates and acquiesces in deeper intimacies, not a sudden act that requires prior discussion.
“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, the existing California definition of sexual assault may already be too broad. Men and women involved in sexual relationships learn the intimate preferences of their partners. As a result, they often know without discussion when their partner desires sex, and can often tell in advance from context whether their partner will welcome a particular sexual act. For example, the former girlfriend of a college hallmate of mine at the University of Virginia would sometimes awaken him through oral stimulation, evincing her desire for intercourse, which generally ensued between them without discussion. Under existing California law, this pleasurable activity is already treated as sexual assault, since a California appellate decision ruled that people cannot consent to future sex while incapacitated. But every person who heard this anecdote thought my hallmate was a lucky man, not a victim of sexual assault (the pleasure of sex may in some cases be enhanced by the element of surprise). Thus, the current California legal definition of sexual assault already appears to be too broad, not too narrow, in such situations.
Hans Bader is Counsel at the Competitive Enterprise Institute in Washington. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”
n 1946 a young, post-war Italian businessman from Valenza, Gino Amisano, began producing leather seats and motorcycle saddles. One year later he repurposed his skills to start AGV SpA (helmets) designing some of the earliest motorcycle protective leather helmets on the market in Italy. As safety testing and standards were not commonplace in this time of history, Amisano was one of the first to begin producing protective motorcycle racing helmets with his 1954 model 160 helmet. Fast forward sixty one years and worldwide the AGV name is living legend. After the production of the first leather “pudding bowl” shaped, crisscross inner lining and harnessed helmet, which would mold to the riders head, AGV had thus separated themselves from the competition, and Gino Amisano would soon be known as the “King of Helmets” in the European industry. To attain such a high status, a “King,” AGV had to establish their dominance in the helmet industry. They started with a riding helmet, but what was to follow? Their first step was by producing a protective jet helmet in 1956, later signing the best motorcyclist to ever participate in the sport in 1967, Giacomo Agostini, who would go on to win 14 World Championships while wearing AGV helmets. The first AGV full faced helmet worn in racing was in an Italian race, worn by Alberto Pagani, in 1969. And finally by creating and sponsoring the now famous “Clinica Mobile, this mobile clinic which would treat injured riders at the race track starting in 1977. It was clear that AGV had a commitment to excellence, both in safety of their products and the sport itself. It was right about this time that Michael Parrotte began riding motorcycles while attending the American School of Paris for three years. During this time AGV was the undisputed King of the helmet world in Europe while Bell Helmets reigned supreme in North America. During this time in Europe AGV Helmets were worn by many of the top Grand Prix Riders – Giacomo Agostini, Barry Sheene, Angel Nieto, Johnny Cecotto, Steve Baker, and Kenny Roberts. AGV was not just the sponsor of racers but of race series. The AGV World Cup consisted of 200 mile events at Daytona, Paul Ricard, and Imola. Shortly after returning to the US Mr. Parrotte wrote a letter to Mr. Amisano enquiring about the possibility of importing AGV Helmets into the US. Communications continued and in late 1976 AGV granted the exclusive rights for the AGV brand to Mr. Parrotte and his new company AGV USA. The first helmets arrived in the port of Baltimore in the spring of 1977. As an avid road racer Michael traveled the race circuit promoting and selling AGV as well as participating in races. During this first season AGV USA sponsored their first racer, an up and coming fourteen year old from Louisiana-named Freddie Spencer. After years of operating as the exclusive importer of AGV helmets, Parrotte saw yet another opportunity in the motorcycling market by producing safety apparel for riders, particularly club racers who needed very durable and safe products and who did not have unlimited budgets. In 1985 Mr. Amisano licensed the use of the AGV tradename to begin a joint venture with Mr. Parrotte in this new sector. In the first year American GP rider Randy Mamola began wearing AGV gloves, the CX-1. AGV road race suits and boots quickly followed, all handcrafted in Italy at the time. After only a couple of years of business in the US motorcycle apparel industry Yamaha Motor Canada became the first international importer of the AGV apparel. After the success of the AGV motorcycle safety apparel in the United States and Canadian markets, the decision was made to expand the name from AGV to AGVSPORT for cosmetic reasons particularity the Suits, Jackets, and pants. The AGV logo was perfect for helmets and worked for Gloves and Boots but was too short for use on arms and legs. So in the late 1980’s the AGVSPORT brand was born. For a number of years products were branded both AGV and AGVSPORT depending on their styling requirements. In the early 1990’s Italian designer Sergio Robbin designed the AGVSPORT logo. Sergio was the top designer for AGV and Spidi and had done extensive design work for Ducati and Bimota. One of his first creations was the Bimota V-Due 500cc two stoke sport bike. The company may have been young in age, but with the years of helmet industry knowledge that AGVSPORT founder Michael Parrotte brought with him from his early years with AGV SpA proved to be invaluable when creating high performance safety apparel. As many other producers focused of fashion, Michael focused on safety, performance, and value over all else. In 1992 AGV SpA purchased a majority ownership of AGV Sports Group. The reputation for durability spread throughout the club racing world and it is not uncommon to see AGVSPORT suits twenty years old or more still being used by club racers today. This ultimately led to a great and long-lasting partnership, now for more than 25 years, with Keith Code and the California Super Bike School, where all instructors would be suited up in AGVSPORT leather suits. The California Superbike Schools’ instructors and students have been using and abusing AGVSPORT leather suits for more than quarter century. These suits are put to a stress test like no other often being used for days on end, rain or shine year after year. These instructors and students often remain in their suits for the entirety of the day’s lessons, and essentially are living in our leathers. You may think the top sponsored riders would be the best example for why our suits are of the highest quality, but it is the instructors and students at this school that showcase how our suits can literally handle the heat and take a beating, all while staying safe, cool and comfortable. Throughout the 1990’s AGVSPORT apparel began to explode on the racing scene, beginning with Loris Capirossi wearing AGVSPORT apparel while winning an FIM GP World Championship in 1991. Back in the US the list of sponsored riders started to look like a who’s who of the racing world: from the US the riders Ben Bostrom, Eric Bostrom, Thomas Stevens, Kurtis Roberts, Aaron Yates, and Roland Sands; from Canada Miguel DuHamel, Pascal Picotte, and Steve Canadians; and from Australia Troy Bayliss, Sean Giles, Craig Coxhell, Josh Waters, Jamie Stauffer, and 7-time AMA Super Bike Champion, Mat Mladin. It was now time for AGV Sport Group Inc. to become an independent entity and all the shares of the company were purchased back from AGV SpA in Italy. But it was not until the fall of 2001 that AGVSPORT was officially recognized by the Italian helmet company as an independent brand, owned by entirely by AGV Sport Group Inc. Today AGV Helmets is owned by famed Italian apparel manufacturer Dainese. Since that time AGVSPORT has enjoyed a comfortable position in the apparel industry. By continuing their age old business model “Designed by Riders, for Riders,” and “The Science of Safety” which combined years of helmet industry knowledge. AGVSPORT has always been on the cutting edge of the safety apparel design and construction. AGV Sports Group has always been, and will always be, a company of avid riders and enthusiasts who are wearing and always developing AGVSPORT apparel. This ensures that you, the customer, will experience the best and safest products we have to offer, and we hope that you will actually be able to feel the history of Gino Amisano and progress of AGVSPORT every time you ride and are wearing any of our AGVSPORT leathers or textiles. Each AGVSPORT product is designed by riders for riders, and function is never sacrificed for aesthetics. By keeping product development and design in house and using experience riders, we are staying true to the dedicated following of discerning motorcycle enthusiasts who respect the quality and value of AGVSPORT performance driven products. We at AGV Sports Group are among the sport’s greatest enthusiasts.
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