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“But rape culture!” Lame excuses for California’s “affirmative consent” bill on campus sex

June 23, 2014

It’s fascinating to watch feminists writhe themselves into kundalini yoga positions trying to defend California’s “affirmative consent” bill on college sex. That’s the bill that would make every male college student a rapist if his girlfriend forgot to moan “yes” a la Molly Bloom at every stage of an amorous encounter–or better yet, put it in writing.

Even the bill’s defenders agree that if the bill becomes law, it will be unenforceable, practically speaking (it contains no clear definition of exactly what “affirmative consent” actually is), and it would make California as much a national laughingstock as Antioch College was when it enacted a similar “enthusiastic consent” rule back in 1991.

To Martha Kempner of RH Reality Check, the bill is great because rape culture:

On a societal level, we have a lot of work to do on how we view sexuality and gender before we make a dent in our rape problem. I also recognize that these laws may be impossible to enforce and may not, in the end, make it any easier to punish rapists; there will no doubt still be he said-she said battles over who said “yes” and when.

Yet I find myself hopeful at the thought of this law passing in California.

To Amanda Hess of Slate, the bill is great because maybe, just maybe, “affirmative consent” might be interpreted by college authorities (we hope) in some way that might make sense.

[A]re affirmative consent laws a good idea? If they are broad enough to include nonverbal cues, I think so. If we can admit that enthusiastic consent is often communicated in body language or knowing looks, then we must also accept that the lack of consent doesn’t always manifest itself in a shouted “no” or “stop,” either. It shouldn’t be the sole responsibility of the uninterested party to speak up during a sexual encounter. If you think it’s easy for a person to just say no, then why would it be so hard for his or her partner to just ask? We could all stand to be more communicative about what constitutes mutually enjoyable sex.

Yes, communication is wonderful, and if sexual partners communicated better, they might have better sex, better relationships, go to heaven when they die, whatever.

But is that a good reason for a California college disciplinary board to levy sanctions against students who fail to communicate effectively–or suffer the loss of state funding, as the California bill requires?

I’m with David Bernstein of the Volokh Conspiracy:

Two obvious questions arise: (1) Why just on campus? If this is a good idea, why not make it part the tort system? If that’s too drastic, let’s start, with say, members of the California legislature. For internal disciplinary purposes, their sexual activity should be governed by the same standard they want to impose on students. What plausible grounds could they have for rejecting application of a standard they would impose on students to themselves? (2) If we’re limiting things to campus, why just students? Why should students be judged under this standard, but not faculty and administrators? It’s hardly unheard of for professors, administrators, and even law school deans to engage in sexual relationships of dubious morality.

Indeed.

Posted by Charlotte Allen

 

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