Anatomy of a Bad Idea: Affirmative Consent

Affirmative consent is a policy on sexual consent that became a legal requirement in public universities in California in 2014, spread to other schools and states from there, and became a socially and politically mandated policy position in progressive spaces soon thereafter. The idea is that, instead of the traditional standard where rape occurs if someone says no to sexual acts and the aggressor doesn’t stop, the standard holds that someone has to explicitly (affirmatively) consent to sex, or else any sexual contact that follows is legally sexual assault. As with the traditional standard, under this policy consent can be withdrawn at any time. But affirmative consent invites a vexing metaphysical question, which is what constitutes a sex “act”; if consent must be given not merely for an encounter to take place in general but for every aspect of that encounter, it compels people to ascertain when exactly a new element must be consented to, while in the midst of an intimate encounter. Whether this results in a mandatory string of constant “May I place my hand on your right breast? May I place my hand on your left breast?” questions is controversial - defenders of affirmative consent frequently call that a caricature, but that is the letter of the infamous Antioch rules, and the sexual consent training industry (yes, there is of course an industry) typically models exactly that.

The theory of progress is - I’m not entirely sure, to be honest. I think the basic dynamic was that dudes at college were being accused and saying “she never said no, I misinterpreted the signs” and not getting arrested. Which I recognize is an injustice, and to whatever degree the policy has actually helped in getting formal investigations started, I’m grateful for that at least. But even aside from the fact that these are campus policies and not legal standards, reducing the practical impact of enforcement, affirmative consent doesn’t actually fix the fundamental problems with prosecuting consent in college or anywhere else, and as far as I can see the whole controversy over it amounted to nothing.

My primary objection to affirmative consent is pretty simple, really. I don’t, in fact, think that most cases of sexual assault are a matter of mixed signals and misunderstandings. I think most rapes are committed by rapists who don’t care if women say no and are perfectly happy to lie about whether they did. (In fact I remember in the 90s that the feminist position was to ardently assert that sexual assault is very rarely a matter of mixed signals.) And this is the immediate, existential problem for affirmative consent: a rapist can just as easily say “she said yes” as he previously would have said “she didn’t say no.” Right? So what problem is being solved here? It’s still a matter of disputing what communication took place in a world where we generally have no evidence about those communicative facts. The condition that vexes a lot of people is that it’s genuinely very difficult to establish the truth if the question at hand is not whether sexual acts took place but whether they were consensual. We live in a rule-bound society where due process has to exist, as unpopular as that sentiment has become in liberal circles, which means that we will frequently be locked in he said-she said scenarios. Affirmative consent is often represented as some sort of salve for this problem but it simply replaces one type of dispute about who said what with another.

And because of the nature of sex affirmative consent activists are forever introducing ambiguity into the picture when the entire purpose of affirmative consent was to reduce ambiguity. You say to people, “you know, it really doesn’t seem like two people who have been dating for five years are going to robotically be saying ‘may I touch your breast now?’ every time they have sex.” And they say “oh no no, of course not, you see there can be implied consent between partners.” Which, one, is no longer affirmative, and two, seems like a disturbing concession - of course people in long-term relationships can commit sexual assault against their partners, so isn’t the notion of such implied consent pretty problematic? Or they’ll say “well, consent can be affirmative without being explicit, it can be a touch, a look in the eye.” Again, this completely torpedoes the very clarity that affirmative consent was designed to achieve. That notion simply empowers rapists; “I read that consent doesn’t have to be explicitly voiced to be affirmative, and she had that look in her eye….”

A common defense of the standard, when this debate was raging, was to say that no one would make an allegation if no sexual assault had occurred, therefore it wouldn’t matter if most people usually don’t follow the standard. Which is bizarre enough on the face of it; what do we make of a policy whose defenders reassure us that it usually won’t be followed? But it’s especially perverse here because it presumes an entirely different standard than the one it’s advocating. If affirmative consent means anything at all, it must mean that someone who does not proactively give consent has been sexually assaulted regardless of whether they believe that they have been. Otherwise it makes no sense, nothing’s changed from the old standard. If what rules is not the victim’s actually expressed consent but their feeling towards whether or not they have consent, then there is no standard of affirmative consent at all! We’re right back where we started. It’s completely unworkable and would appears to solve no problems. It’s just a way to look busy.

The result of this unworkability seems to be that college students in places like California and New York usually just ignore the rules, as you would expect of 18-24 year olds. I’m willing to bet most affirmative consent advocates don’t practice them consistently in their own sexual lives. It became risky to say so during this debate, but many or most people seem to feel that constantly stopping to ask permission during such a primal act between two consenting adults robs it of its immediacy and intensity. All of these problems, though, are cleared up by maintaining the simple standard of saying that sexual assault occurs (among other instances, such as in the case of intoxication or when the victim is underage) when someone says no and the other person doesn’t stop. It strikes me as a far more constructive and workable standard. Is it a foolproof guard against issues of ambiguity and conflicting testimony? No, of course not. But I genuinely see no way in which affirmative consent makes prosecution against rape easier, and find it perverse in establishing a standard that almost everyone would privately concede is simply not going to be followed.

Sexual assault is of course an issue of immense importance and exquisite sensitivity. The problem is that such sensitivity inspires people to search for tools to fight it with such vigor that they can land on solutions that aren’t solutions. Ezra Klein epitomized this attitude, and the politician’s fallacy, when he published a piece under the headline “‘Yes Means Yes’ is a terrible law, and I completely support it.” In it, Klein repeatedly concedes the various deep problems with affirmative consent, but then avers that sexual assault is just such an important problem that we need to do something. He then spends several thousand words unconvincingly defending a policy he explicitly says is not a very good policy at all. Liberals always find a way to stand on principle, even if that principle makes no goddamn sense and is no good for anyone.

The affirmative consent advocates won, in many places, but it’s hard to say it’s made any difference. Klein says in his piece that “the Yes Means Yes law is a necessarily extreme solution to an extreme problem.” In another Vox piece, Amanda Taub describes a fanciful scenario where affirmative consent laws completely remake our sexual consent politics. But seven years later, it seems rather clear that we occupy just about the same mundane, depressing reality we did before. Affirmative consent is the law of the land on many college campuses, but there’s precious little evidence that anything has actually changed. There have indeed been a small handful of high-profile miscarriages of justice enabled by college “courts” that have interpreted these rules overzealously. (That so many people want Deans of Student Life and Assistant Professors of Exercise Science to be serving on what are effectively judicial bodies completely baffles me.) And no doubt there have been some few cases where the affirmative consent rules have resulted in the expulsion of genuinely predatory students. But we have no evidence college students are actually routinely having sex this way. Self-reported campus sexual assault rates rose slightly between 2015 and 2019, but it would be very difficult to coherently say what connection this might have with affirmative consent policies and whether they’re actually being followed by most students. Absent a systematic review available in either the scholarly literature or the press, I have to assume based on the paucity of evidence of change that the general atmosphere is still the same as it was when the Times investigated in 2015: “The policy has changed but nobody knows.”

The problem was always this: the affirmative consent standard required the participation of a large and diverse group of young adults who, like most of us, find constantly stopping to ask permission of every discrete “sexual act” dehumanizing and unnatural. They’ve told us so. This seems like an entirely predictable outcome, yet when this was being debated in around 2014 or 2015, criticism of the policy was muted. Why? Well, it’s obvious: to appear to be against a law represented as a victory for women’s sexual and bodily autonomy is very risky in the social media era, regardless of how ineffective and bizarre that law actually is and regardless of what you’re actually objecting to. Who, in the era of cancellation, is going to be particularly vocal about opposing laws that some people represent as an impediment to rape, even if everyone knows that they’re a fig leaf? Should this post escape from my regular readership onto Twitter, surely someone is going to claim that I’ve said that consent is dehumanizing and unnatural, and many more people will then amplify that claim without bothering to read what I actually wrote. Most writers are too emotionally delicate and professionally vulnerable for that, so everybody halfheartedly got on board the way they did with Defund the Police and other bad ideas.

So you get this huge policy change at hundreds of universities that does effectively nothing to stop sexual assault, infringes on the rights of the accused, and functions as a make-work program for overpaid “consultants” and liberal writers, all while most people quietly recognize that nobody follows it, and support for that empty policy is enforced with missionary zeal not by true believers but almost entirely by people who are too scared to ask whether any of it makes any sense. Perhaps creating an oppressive culture of fear of permanent ostracism and professional exile in liberal media was a bad idea.