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.”