California's affirmative consent law requires affirmative consent to be obtained before a sex act qualifies as "consensual." Practically applied, it means that during a collegiate rape investigation, the onus will be on the assailant to prove that he obtained consent, rather than on the victim, who in the past has to prove that he or she said no.
But one writer over Reason (and at The Week) believes (without a shred of hard evidence or a real world example — ironic, for a publication with the word "reason" in its name) that this could be the end of sex as we know it. She's really worried about it. She's concerned that the lawmakers who wrote it don't understand how sex really is. This law, she argues, will ruin the lives of some "good guys" who had no idea they were doing anything wrong. You know, those "whoopsie daisy" rapes.
But by effectively changing the assumption from "presumed innocent" to "presumed guilty," this new standard will inevitably snag some guys who earnestly meant no harm. Over time, of course, an industry will emerge to coach the accused on how to game the law and get away.
She goes on to assert that not only will affirmative consent ruin the lives of some good old aw shucks guys just tryin' to have a good time with their dicks without harming nobody, it will also ruin sex as we know it. Forever. For everybody. Even people who aren't hanging out at college parties at age 35 trying to find a 19-year-old boyfriend.
The truth is that, except in the first flush of infatuation, both partners are rarely equally excited. At any given moment, one person wants sex more passionately than the other. What's more, whether due to nurture or nature, there is usually a difference in tempo between men and women, with women generally requiring more "convincing." And someone who requires convincing is not yet in a position to offer "affirmative" much less "enthusiastic" consent. That doesn't mean that the final experience is unsatisfying — but it does mean that initially one has to be coaxed out of one's comfort zone. Affirmative consent would criminalize that.
The reality is that much of sex is not consensual — but it is also not non-consensual. It resides in a gray area in between, where sexual experimentation and discovery happen. Sex is inherently dangerous. Sometimes, there will be misadventures when these experiments sgo wrong. Looking back, it can be hard to assign blame by ascertaining whether both partners genuinely consented. But trying to shoehorn sex into a strict, yes-and-no consent framework in an attempt to make it risk free can't help but destroy it.
This argument is bad and dumb for many reasons. First, the assumption that sex is a horny guy trying to convince a tired woman to lie there while he pumps away at her sex hole while she wonders to herself if this is what she really wanted is an assessment of heterosexual intercourse so grim that I feel a great deal of pity for the person whose life experiences have led to those conclusions. And even if that were the sexual status quo, why on earth would we defend it? "Sex is inherently dangerous?" The fuck?
Secondly, the writer assumes that men are always the sexual assailants and women are always the victims and that rape always occurs in the context of a heterosexual coupling, which is so far from being an accurate statement that it's damaging to male victims of sexual assault and victims of female assailants. Again: The fuck?
But the piece's most ridiculous aspect is the assumption that following every sex act, thanks to this law, authorities will sweep in and subject both parties (but mostly the man) to an exhaustive cross examination on consent as the pair of lovebirds towel their bodily fluids off of each other in a panic. That isn't going to happen. As my former colleague Callie noted in her piece on the affirmative consent law, all of this conservative arm-waving is misguided overreaction to a law that they don't understand written to correct a crisis they don't understand.
I've read several hysterical articles and comments alleging that adding an affirmative consent clause into college sexual assault policies will give administrators free range to expel innocent students with wanton abandon. If you've read a single report on sexual assault at college campuses — literally even one — you will know that this fear is utterly laughable.
Colleges rarely, if ever, expel students who are found guilty of sexual misconduct. [...] In reporting on campus rape, I've spoken to several students — both men and women — who dropped out of college after their administrations refused to remove their rapists from campus. I've read about countless more. Many of these students suffered from depression and PTSD in the aftermath of their assault, and some attempted suicide. All of their attackers graduated relatively consequence-free: until very recently, the harshest punishment I'd heard of a rapist receiving was a single-semester suspension. We need stricter laws precisely for this reason. Colleges are wildly unlikely to take decisive action to protect sexual assault survivors without pressure from outside forces.
Won't somebody please think of the rapists?