David Bernstein at Volokh Conspiracy points to and agrees with an article by Cathy Young at Reason.com regarding a proposed rule in California to require “affirmative consent” before sexual contact at universities in the state. Such a rule was made most famous over two decades ago when Antioch College adopted a code requiring affirmative consent for every level of intimate contact. Bernstein and Young are not fans of the proposal because, in part, they believe that the use of an “affirmative consent” standard is overexpansive.
Every semester that I teach my Sex Crimes seminar, we discuss the Antioch College rule, Michelle Anderson’s article advocating a similar rule, and affirmative consent in general. I think the pattern of my class discussion is informative regarding the arguments that Young and Bernstein make. Initially, every student is hostile to the Antioch approach (which is broader than the California proposal). They generally come to agree that the rule is at odds with romance and spontaneity in the bedroom. Indeed, the idea of someone forming several oral contracts for each intimate encounter sounds like a “turn-off” to most of my students.
When I add a few wrinkles, however, the students become big fans of affirmative consent. I ask if they would be comfortable if a date started tying them up and spanking them with a leather whip without getting affirmative consent? Would they be okay if someone initiated anal sex without asking?
So, why do they support affirmative consent in those situations, but not in the case of heterosexual vaginal sex? The answer seems to be based upon each student’s norms and conception of deviance. For atypical (subjectively defined) sex acts, students want an affirmative consent model. For “normal” acts based upon a cultural narrative of what is “supposed to happen,” negative consent is sufficient
Does it follow, then, that affirmative consent should be required in all instances? No. The point of the exercise is to illustrate why many sexual encounters might be considered sexual assault by one person (based upon his his or her norms about consent), but not by the other. The more deviant or intimate the act based upon general societal norms, the more likelihood that at least one participant wants affirmative consent. If we are to use consent as the primary element in rape statutes, we should view the discussion of affirmative vs. negative consent as an either/or proposition. Instead, a widely-applicable consent rule needs to recognize that a universal affirmative or negative consent rule is firmly at odds with our sexual culture.
It has been my experience in teaching Criminal Law and Sex Crimes that students, even more so than other areas of law, tend to believe that their norms about consent are both typical and reasonable. And yet, when they start discussing those norms, they discover that their beliefs vary in substantial ways from other students. And it isn’t just law students. Later this year, I will be publishing an article-length response to Jed Rubenfeld’s Yale Law Journal piece retheorizing rape law. Although I was dismayed and shocked by a lot of his contentions, there was one footnote by Rubenfeld illustrating his view of a sexual norm that truly surprised me. Rubenfeld wrote:
But really: is it so clear that all unconscious sex should be criminal? Among well-settled couples, long used to sharing the same bed, sexual contact of various kinds with a sleeping person is common. No one thinks all such touchings are criminal. Doesn’t this undermine the idea of an ipso facto rule against sexual contact with the unconscious?
If Rubenfeld were a rape trial fact-finder or legislator, his view of consent with unconscious persons would be very different than mine affecting the case outcome or proposed legislation. We could define that difference based upon affirmative and negative consent (with an unconscious person unable to give affirmative consent), but I think that is unhelpful. From my perspective, the reason that the acts described by Rubenfeld (“sexual contact with the unconscious”) are problematic are orthogonal to consent. And the debate about affirmative and negative consent models often distracts us from other alternative formulations of rape law.