Sex Is Serious
Affirmative Consent Laws Miss the Point
January 12, 2015
Jan 12, 2015
16 Min read time
When it comes to consent, feminists and Christians agree.
It is a strange season when culture warriors and women’s studies departments find common cause, though not unheard of—think pornography. But while Gail Dines’s Pornland (2010) won acclaim from The Christian Post, conservative Christian sex ethics and feminist sex ethics maintain disparate opinions of sex itself. For the conservative Christian, sex has always been a matter of the most sincere gravitas, the ultimate (and sometimes sacramental) union; feminist sex ethicists have a more liberal view of the matter, favoring personal experience over some sublime essence. In other words, the two don’t seem to share a conception of the kind of thing sex is.
But the gap between these camps appears to be closing, and with disquieting effect. When feminists rally to support measures intended to protect women by governing the parameters of sex, it seems a de facto claim is made upon the nature of sex itself, one that may not be altogether welcome.
The convergence concerns a bill passed this past August by the California legislature, a bundle of regulations pertaining to educational institutions receiving public funding. Most notably, it enforces a standard of “affirmative consent” in sexual assault proceedings. Roughly a month later, Governor Jerry Brown signed the bill into law. According to the text of the law, affirmative consent
means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
In other words, no means no, but nothing also means no, and a variety of intermediate expressions between perhaps and absolutely now must also be presumed to mean no. Neutral body language is also no longer sufficient to communicate consent. Murkier yet is the policy regarding the ongoing sex act, which hearkens back to the infamous sexual assault policy of Antioch College, profiled thus in a 1993 edition of the New York Times:
The guiding principle of Antioch’s policy is that clear, verbal consent is required before proceeding to any new level of intimacy. ‘Do not take silence as consent; it isn’t,’ the policy states, illustrating it with the hypothetical response, ‘Yes, I want to kiss you also.’
Antioch’s approach to sexual assault was thoroughly roasted in popular culture. On Saturday Night Live, game show contestants tried to figure out what, exactly, constituted date rape. A decade later, the joke was still going strong: in 2004 Chappelle’s Show skewered the idea of a “love contract” with all due initialing and signatures for each activity in a night’s passion—“because,” the narration explains, “you’d hate to catch a beef for something you know you didn’t do.”
Christian conservatives and some feminists agree that sex must not come with reservations.
Another decade after Chappelle, the humor finally seems to have drained from the matter. This time around, affirmative consent is serious: laws have been passed, university policies have been changed, and mainstream feminists have thrown their support behind the new rules. Writing in Slate, Amanda Marcotte championed the premise of affirmative consent, backing “the push for states and universities and other institutions to create an affirmative consent standard, where both parties should display a ‘demonstrated intent to have sex’ in order for it to be considered consent.”
Amanda Hess, in another supportive Slate column, came up sanguine where SNL and Chappelle came up skeptical: “We could all stand to be more communicative about what constitutes mutually enjoyable sex.” By Hess’s lights, it is not so terrible to suppose a sex act should include multiple occasions for re-affirmation of consent; the initiator should be vocal too, removing the sole responsibility for speaking up from the more passive party. Better yet, both should be initiators. As for the broader suspicion that such tight standards of consent would reduce the availability of sex partners, Marcotte found this, too, a kind of benefit:
Sure, there will always be men who will whine that it’s so hard to get laid if you have to bother knowing if your partner wants to have sex, too. But so what? If I ran around saying that it’s so hard to get invited to dinner without just walking into people’s houses uninvited, that wouldn’t change the fact that I’m criminally trespassing.
This would be a strange claim in a debate about the definition of criminal trespassing, and it is equally tendentious to bracket expressed ambiguity under the broad category of rape. After all, the affirmative consent law would broaden the bracket of what constitutes rape under the law, so proposing as obvious that all sex in which affirmative consent isn’t expressed must be rape presumes Marcotte’s conclusion in her premise. But Marcotte artfully dismisses the foundational complaint about affirmative consent standards: if it cuts down on sex, maybe that is a good thing. Those who would have sex without receiving their partners’ affirmatively expressed permission shouldn’t be having it. Those put off by affirmative consent statutes should be put off, and the world of college sex will be healthier for it.
Of course, the critique of affirmative consent standards hinges on a more complicated concern than Marcotte addresses. Comedy reveals the potential absurdity of applying unsmiling legal regulations to the fluid, sudden, passionate, individual, and ephemeral act of sex: Is a kiss on the inner thigh as welcome as one on the outer? It is not ridiculous to wonder how one could go about offering repeated affirmations while maintaining the momentum of the encounter, and feminist dismissals of such scenarios are not convincing. Marcotte and Hesse can tell us how such rules might produce more virtuous outcomes—licit sex, by their reasoning—but not how they might be compatible with the sex many of us are already having without complaint. Married and long-term couples often know a great deal about sleepy sex, duty-inspired sex, even fully consensual sex that is left a tad icy out of spite, all of which could be categorized as rape under the purview of affirmative consent. This is not to say that the law would ever be applied—doubtless these couples would not bring a complaint—but only to point out that the law’s claims about the nature of rape would seem to mis-categorize these consensual acts as rape purely due to the lack of expressly affirmative consent.
In the age of SlutWalk, a protest movement that celebrates libertinism alongside strict standards of consent, feminists defending affirmative consent standards have a challenging task: to insist upon rigorous legal intervention in the hazy realm of sexual expression. But how does one maintain that sex is generally fun while equally insisting on dry, scholastic parameters defining the circumstances in which that wonderful fun is allowed? Doing so suggests, as Marcotte detects, that one is not primarily dedicated to everyone having fun.
After all, not everyone is.
• • •
Matt Walsh is a conservative Christian blogger for the common man, a tattooed twenty-something with thick-rimmed glasses and hot opinions on just about everything. This past August, he took on the institution of safe sex, blustering against a school district allegedly distributing condoms to sixth-graders and condemning the whole notion of protected intercourse:
Most of the people in this country are petrified of sex. The very thought of it terrifies them. Modern society plays host to the most pathetic collection of bored, sexless cowards ever to walk the Earth. We have taken the honesty, love, passion, beauty, and creative power out of the act, and replaced it with something sterile, guarded, frivolous, and disinterested.
To understand Walsh’s take, you have to understand how he defines sex. Guarded is the key word: for Walsh, as for a number of Catholics and a growing constituency of evangelicals, sex with contraceptives is not sex at all, but a pseudo-sex marked by incompletion. Following the teachings of Pope John Paul II, Catholic scholar Janet Smith explains:
The sexual act is meant to be an act of total self-giving. You want to give everything you’ve got to this person. When you’re withholding your fertility, you’re withholding something that belongs in this action; it actually belongs there. And to withhold it means that you’re not giving of yourself completely.
If you factor the potential for procreation into the sex act as a whole, then contraception signals a failure to consent to part of the sex act. Therefore, by the most conservative Christian reasoning, sex with contraception is illicit on grounds of consent. Refusing to fully participate corrupts the entire act. This principle forms the backbone of many abstinence-only sex education curricula, especially those that counsel young girls to “guard their hearts” so they can give themselves fully to some future husband. The reasoning here is that if one gives away “parts” of oneself, then one can’t give “everything” later, and the act is permanently ruined by half-measures. The diminished sex act, reduced either by wantonness prior to marriage or via the use of contraception within it, is usually described as sinful under the broad perimeter of lust.
Recently the political manifestation of Christian opposition to prurient sex has been located in school curricula. But it was previously present in the law as well. It was Griswold v. Connecticut (1965) that most famously struck down laws against the provision of contraception to married couples under the “penumbra” of privacy allowed by other constitutional protections, but Connecticut’s law against the distribution of contraception was hardly unique. An 1873 set of statutes known as the Comstock Laws prevented for decades the use of the U.S. Postal Service to transfer articles of obscene or immoral use, among them pornography, sex toys, and contraceptives, each of which displaces some aspect of what should be a fully committed instance of sex between two married partners, open to the creation of life, not reduced by some reliance upon artifice.
Feminists and conservative Christians may differ on what constitutes “everything” in terms of sex, but they agree that reservations, however minor, wreck the whole project. Affirmative consent laws are predicated on the idea that sex without consent is wrong. Resulting legal or administrative action is only a response to the discovery of that wrong, not an invention of it. The law makes a statement about the nature of the right kind of sex in general, and also claims that the right kind of sex is serious enough to merit legal intervention. In this way the law doesn’t simply codify existing mores to prevent rape, but seeks to teach future generations by “changing a culture,” as Mother Jones’s Kevin Drum put it. Here again, the feminists behind affirmative consent statutes and the conservative Christians behind abstinence-only sex education share a playbook.
• • •
Conservative Christian and feminist agreements on sexual matters can be incidental, a function of similar means but dissimilar ends. This is surely the case with respect to pornography.
But something else is at work when it comes to the nature of sex. Here, fundamental agreement seems to underpin affirmative consent advocacy and Christian conservative approaches to sex: in both cases, sex is something important and powerful enough to merit careful legal attention to any reservations that may disrupt it.
It is easy to understand why hard-line evangelicals would pursue the backseat jollies of teenagers with such fervor. After all, premarital sex could be the difference between damnation and salvation. Screwing it up is serious because sex itself is serious. Nothing less could occasion Augustine’s entire Confessions, nor occupy so much contemporary conversation on Christian ethics.
The feminist project suffers when consent rules suggest women are essentially unknowable.
But would feminist defenders of affirmative consent ethics say the same? The answer might strike you as a trivial “no,” since feminists aim to prevent rape, while conservative Christians aim to ensure that everyone is having the only biblically valid sex. But consider what the affirmative consent doctrine actually does. It doesn’t prevent coercion any more effectively than existing rules do; rape is just as illegal now as it was before, and the critical he-said-she-said problem remains unsolved. (The direct prevention impact of the rule is in the reduced standard of evidence for adjudicating allegations of abuse, which is distinct from the consent requirement and may allow colleges to punish larger numbers of defendants, creating more effective deterrence but potentially presenting its own hazards.) What the consent requirement does is establish a right way to have sex, in light of the gravity of the act.
The right kind of sex is not the loose, frivolous sort favored by the college hookup culture but that of the SlutWalk, which may be ostensibly no-strings-attached, but is also marked by mutual concern, unreserved enthusiasm, and ongoing mutual engagement. There is a shared focus on body language and verbal cues, refreshed step-by-step, underscored by an honest interest in the other person’s mental and emotional state with regard to the sex act. This picture of sex would appeal more to the Evangelical than to any college Casanova. What of bored sex, disinterested sex, or sex with reservations?
For the affirmative consent advocate, that is all out. The right sort of sex is more than a silly pastime. Legal definitions must pin participants into the right way to do it, and the state will work through educational institutions to popularize those notions. Again, sex already legally and administratively requires consent; the only change is to the mandated expression of consent, which is an intervention into the way sex is.
At the core of the affirmative consent ethic, sex is, in fact, a major thing: it deserves proper pedagogy, it deserves state-enforced parameters, it deserves a comprehensive ethic embedded in institutions of higher learning. Contra Saturday Night Live and Chappelle’s Show, it is not a laughing matter.
• • •
“Comedy is born from . . . the peasant villages,” Umberto Eco writes, in The Name of the Rose (1980).
Comedy does not tell of famous and powerful men, but of base and ridiculous creatures, though not wicked; and it does not end with the death of the protagonists. It achieves the effect of the ridiculous by showing the defects and vices of ordinary men.
In The Name of the Rose, comedy crusades against a dry, severe scholasticism that renders God less accessible by attempting to serve him in the utmost reverence. One might note the same sundering at work in affirmative consent ethics.
Damage is done, after all, to the feminist project when the attempt to protect women from certain forms of sexual violence ends up suggesting that women are essentially unknowable, that the usual ways of reading us can’t be trusted, and that our minds must be constantly probed for affirmative signals. It is also fair to fear the creation of a category of sympathetic offender, something that conservative Christian sex ethics arguably accomplished long ago. It is easy to revile the adulterer and maybe even the fornicator, but when man and wife using contraception within marriage for defensible reasons are equally vilified, the whole project starts to look a little shaky. Likewise, we imagine rapists to be sociopaths or hardened criminals, but whether that image will remain once hapless screw-ups slip into the mix en masse remains to be seen.
Every institutional rule, codified or not, argues a case. Laws against murder tell us something about the value of human life, and programs mandating the teaching of evolution tell us something about the intent of schools. Rules, in this way, teach us something, sometimes a number of things. In the case of affirmative consent ethics, the informative content of proposed legislation will perhaps be pleasing to an unexpected audience, which points to certain odd convergences of dogma, even among divergences in creed.
But along with a provocative parallel, Christian intellectual history also provides a helpful suggestion. In Augustine’s estimation, law had the capacity to be morally instructive—a magistrate’s pardon, for example, could commend the virtue of mercy—and yet he acknowledged equally that no law could inculcate goodness where none was. Where to apply law and where to rely upon the other tools of ethical formation was a matter, for Augustine, of pragmatism. So too should it be for us.
The affirmative consent law doesn’t seem terribly pragmatic. It inspires misapprehensions other than the subtle but suggestive shift toward baptizing a particular right approach to sex. There is the vagueness of it: if consent must be affirmative but need not be verbal (as the text of the law allows), doesn’t that old saw, “She looked like she wanted it,” still suffice? The law is premised on the idea that rape is often the result of misunderstanding and that enforcing greater attention to communicative detail will thus reduce it. But this assumes that most would-be rapists are really just horny and slipshod rather than malicious and calculating. The ones who are malicious and calculating will lie about affirmative consent as smoothly as they once lied about regular consent; so too might the horny and slipshod trying to save their own skin, being unconvinced that they have done anything wrong. And while the California law only applies to universities, there is no clear reason why college students should operate under different standards of consent than the rest of us. Paul Bourget wrote, “One must live as one thinks, under pain of sooner or later ending up thinking as one has lived.” If we truly agree affirmative consent is worth legislating, it will not remain applicable only to college students for long.
A more pragmatic approach is the Obama administration anti-rape initiative It’s on Us. The campaign urges young people, primarily, to learn to identify circumstances in which sexual assault seems imminent, to build up the courage to intervene, and to openly disdain non-consensual sexual activity of all kinds among peers. It is a shot at horizontal ethical formation rather than vertically imposed reform, and it has the benefit of encouraging open opprobrium for offenders. This means that while it carries the same hope for cultural change that affirmative consent laws do, it explicitly places the responsibility for change with the individuals themselves—that is, with the young people who routinely view non-consensual sex acts in process or progress and do nothing to intervene, as well as those who count on that reticence to have sex with unwilling or inebriated partners. The focus on culture here differs from law in that it carries no special penalties aside from those already in place for acts of rape, meaning that it does not discourage individual action by imposing legal mandate, which can foster the distressing conviction that the problem is already solved by higher authorities. A preponderance of such programs at university orientations would seem better suited to cutting into toxic cultures of campus sexual assault than remote laws that presume such cultures are merely rife with misunderstanding, as opposed to license, ignorance, and even malice.
And, best of all, It’s on Us sidesteps the use of the law, leaving closed the door to further legislation as to what constitutes the right kind of sex. Encouraging bystander intervention and a shift in campus vocabulary around sexual activity narrows the focus of affirmative consent ethics to the communities where they are needed, without much disturbing anyone else. It allows for some texture and irregularity in the expression of consent without drifting toward legislative insistence upon how sex must be had. In leaving room for nuance and individual experience in expressions of sexual willingness, we take a step back from one of life’s grand mysteries—what is the nature of sex, exactly? That question is most delightful when unsettled.
Editors' note: This piece originally appeared online in October, but was updated to reflect changes for the January/Febrary 2015 print issue.
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January 12, 2015
16 Min read time