Everyone Likes Affirmative Consent, Until They Don’t

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.

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8 Responses

  1. Douglas Levene says:

    Prof. Yung,
    I admire your courage in teaching a sex crimes class in these hypersensitive days. I am quite certain that if anyone taught the law of rape the way Prof. Israel did 30 years ago (“how do you put a pencil in a moving Coke bottle”), he would be drawn and quartered, without a trial.

  2. David Bernstein says:

    Corey, you are talking about affirmative consent in the abstract, and about whether whether people “like” or are “fans of” affirmative consent. Cathy and I are talking about an actual bill that may very well become law, that would dictate penalties to students for sexual assault. Consider this language. “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.” So if you are going to ask about the tying and whip hypo, or the anal sex hypo, what you need to ask is not “how do you feel about affirmative consent in these contexts” in the abstract, but “how do you feel about a law that would require a university to punish a student as a rapist for not getting affirmative consent for initiating these activities, even if the couple was at the time involved in a romantic relationship and had engaged in these activities many times before, and even if the initiating party stopped immediately when asked?”

    I can imagine much more narrowly tailored “affirmative consent” rules that might even be good ideas (like don’t attempt anal or vaginal sex for someone for the first time without affirmative consent).

  3. David Lang says:

    re: your horror at people touching unconscious partners in a sexual fashion, in any case where the couple is sleeping in the same bed, it’s hard to say that all touching between them that could be considered “sexual” should first require waking the other person up and asking their permission.

    remember that this can include kissing someone goodby, stroking their cheek, etc.

    but even far more intimate contact is considered normal by many people (and romantic to wake up your partner in such ways)

  4. Corey Yung says:

    Hi David B,

    Although I am not a fan of the bill, I actually think it will have little impact. Stories between alleged victims and rapists rarely match. Particularly because the law allows non-verbal communication, an alleged rapist is still free to argue that he thought there was a signal to proceed. The way rape cases are adjudicated (when proper procedures are in place) is usually more reflective of our culture than our law. As Dan Kahan’s study illustrated, what you tell potential jurors about consent almost never matters. The point of my post, consistent with Kahan, is that cultural norms govern consent law and not the inverse. I oppose the bill because it is likely to accomplish almost nothing positive while creating a backlash from people believing the law is overexpansive. Of course, until consistent adequate procedures are in place on campuses, it is hard to know for sure how such a rule would be applied in practice.

  5. Corey Yung says:

    Hi David L,

    I have no problem with long term couples having intimate contact while one person is asleep so long as both people have previously consented. And because the article was about rape, my dispute with him was focused on instances involving conduct beyond kissing and touching. I found Rubenfeld\’s belief that sexual (not just intimate) conduct is \”normal\” to be surprising. Of course, he might be right and my assessment of general practices is wrong. Nonetheless, Rubenfeld\’s statement is problematic in the context of his overall argument. He contended that the non-consent element of rape statutes should be removed. In such a world, there would no longer be a legal line between non-consensual sex with an unconscious person and previously agreed to sex with an unconscious person.

  6. Nate says:

    If the true goal is “affirmative consent”, why would oral agreements be sufficient? How could someone prove ongoing affirmative consent without (1) full and complete audio/video recordings, and/or (2) periodic written agreements documenting and re-affirming consent? In the absence of written waivers or recordings, the parties’ would be left with oral testimony and extrinsic evidence about the scope, nature and/or duration of consent.

  7. PrometheeFeu says:

    Corey,

    I’m not sure what you mean by affirmative consent. I usually read it as implying that the victim of a sexual assault does not have the responsibility to say “no” as a general rule. But it almost sounds like what you mean is explicitly expressed consent.

    Going off that assumption, I think merely requiring that all involved have a reasonable belief (or some stricter standard) that consent was obtained is sufficient to cover both of your student’s positions. It’s a relatively simple Bayesian updating problem.

    -If your reasonable priors are that the person is likely to consent, (it’s run-of-the-mill sex, or you want to engage in kinky activities after picking them up at a kinky party) it is reasonable to conclude consent from even somewhat ambiguous positive signals.
    -If your priors are really strong (you have engaged in that activity with that person in those circumstances on multiple occasions and they have always seemed quite happy about it) even some mild protestations (“I’m trying to finish that paper”, “I’m a little tired tonight”) could still allow you to reasonably infer consent. (on the other hand, a stronger “no” would overcome your initial prior)
    -If your priors are weak (you invited your date in for a cup of tea, you haven’t spoken about sex at all and you want to engage in highly unusual sexual activities) it may be that nothing short of an explicit “yes” could reasonably lead you to infer consent.

    Of course, there are some administrability issues which may warrant deviating from such an ideal standard. Nevertheless if we do, we should explicitly recognize that we will be criminalizing some consensual sexual activity.

  8. AYY says:

    Prof. Yung, The question is not whether something is all right with the other person, it’s whether an external sanction that has the force of criminal law, or civil law should be applied. If a person is in a sexual relationship with someone, then there has to be a justification for the external sanction to apply.

    I see that you are not in favor of the bill. But there are more problems than the ones you mention. Suppose you have a partner who needs some warming up, and is passive until she is warmed up, and ihe warming up is usually but not always enough to get her interested. Under an affirmative consent rule, at what point does the warming up process become a sexual assault that the law should punish, and why? Does it depend on whether she’s warmed up, or how warmed up she is? Does it depend on your perceptions of how she’s responding? Or what is she says not that spot, this spot–you’re not doing it right. And then suppose you’re an attorney and you’re supposed to follow the law even though a prosecutor wouldn’t file charges.