California’s College Rape Rule is Probably a Bad Idea (but not for the Reasons the Critics Say)

Jonathan Chait has joined the chorus of critics of the new affirmative consent rule in California for college campuses. Like others, he contends that the new rule effectively criminalizes ordinary sexual activity among college students. For three reasons, I think the claim is not well supported.

First, consent standards probably do not matter. Dan Kahan did the best study on this issue and the results are pretty clear. No matter what you tell people examining a rape case, they end up applying their own notions of consent. To the degree that any instruction of the law matters the effect size is small. I think this finding will hold true in adjudications under the California affirmative consent rule.

Second, stories of the alleged rapist and victim almost never match rendering legal standards as side issues and putting credibility as the central problem of rape cases. There are normally significant discrepancies between the accounts of alleged rapes. For the people willing to intentionally lie (either way), the new rule just indicates the content of their lie must change. For example, instead of saying, “she never objected,” a defendant would say “she said ‘yes.'” Even for those cases where the discrepancies are based upon cognitive biases or other unconscious factors, it is likely, if history is a guide, that the differences will align around the legal rule in place.

Third, the drunken sex cases that the critics are focused on are almost never resolved based upon the consent standard. The cases instead rely on incapacity. Whether a negative or affirmative consent standard applies is simply irrelevant in a case where the victim was too intoxicated to consent. The affirmative consent standard is a red herring in the primary scenario identified for overpunishment on campuses.

Even with all of those reasons to doubt its effectiveness in changing case outcomes, the California rule might simply be innocuous. However, there is a real danger that rule changes like this feed into a very dangerous cultural myth about rape law. Stephen Schulhofer probably said it best in his book Unwanted Sex: “Opponents of rape reform have managed to convince a wide audience that standards of permissible conduct are now dictated by ‘hypersensitive’ young women and by ‘radical’ feminists committed to a highly restrictive, Victorian conception of sexual propriety…. The reality is far different. The claim that legal rules, campus behavior codes, and company policies enshrine radically overprotective, puritanical rules of conduct is a myth.” In roughly half the states in America, having sex with someone who is highly intoxicated, but still conscious, is not rape. Many jurisdictions still apply a resistance or corroboration requirement in charging decisions despite such rules having long since been removed from statutes.  The list of problems with the application of modern rape law is extensive. Unfortunately, the backlash against the California affirmative consent rule has already helped spread the myth of radical change. And because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative. I hope I’m wrong.

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5 Responses

  1. Brett Bellmore says:

    “Whether a negative or affirmative consent standard applies is simply irrelevant in a case where the victim was too intoxicated to consent.”

    You seem to be going with the absurd rule that any time somebody has drunken sex they’re a “victim”. But, who’s the victim when they were both drunk? Logically, either both must be prosecuted/sanctioned, or neither.

  2. Corey Yung says:

    Most (all?) people would agree that at some point intoxication renders a person unable to consent. The disagreement is just about where that line is. Unconsciousness? When a person doesn’t understand the nature and consequences or his or her actions?

    There is also a substantial problem of proof because retrospectively assessing a level of drunkenness is very difficult. There is almost never helpful blood or breath evidence. Instead, cases use a lot of imperfect proxies such as whether a person was “fall-down” drunk.

    Our law also complicates the issue further by differentiating voluntary and involuntary intoxication. If we were truly operating on a principle of incapacity, we shouldn’t care about whether a person willingly or unwillingly ingested the intoxicant. And yet many states, and the general public, treat those situations as different.

    I push my students on this issue because no one has proposed anything close to an ideal rule. I have no objection, however, to prosecuting both parties as we would in a drunken bar fight.

    I think incapacity is a poor theory for rape law in non-intoxication cases as well. In statutory rape law, jurisdictions which have a difference in age requirement recognize that two 15 year olds having sex with each other is different than a 50 year old having sex with a 15 year old (which I agree with). If we were firmly committed to an incapacity theory, those situations would both be considered statutory rape (which is the rule in a minority of jurisdictions). Similar problems emerge with sexual relations with someone with a mental or functional impairment.

    So, I don’t have a committed view as to the best rule in this area. My post was simply countering the claim that the affirmative consent standard would criminalize drunken sex.

  3. same….I hope this news its wrong…

  4. Peter Gerdes says:

    It seems there are several deep problems with this sexual assault law and some difficulties I have with your argument.

    As for your argument you suggest that the California law won’t be a problem since there are almost always deep questions of credibility and disputed fact in cases of sexual assault. This makes the false assumption that because those sexual assault cases that are currently filled involve such issues so too would new cases authorized by the California law.

    However, as you seem to acknowledge, a great many people are relatively decent and are strongly disinclined to lie or at least bad at it (if you don’t grant this you can’t support he-said she-said sexual assault actions since everyone will lie and the jury is no good at evaluating truthfulness). But, assuming that the evaluating body has any ability to evaluate the truth or falsity of the representations, this change in the law allows a huge class of previously doubtful disciplinary actions to become probable winners. Yet, this is the class of disciplinary actions which we should least want to appear, cases in which generally honest well-intentioned people nevertheless have some kind of misunderstanding.

    Unfortunately, (lost the link) there is a large amount of sociological evidence that suggests (and is certainly true in my experience) people have virtually insurmountable societal pressures to initiate and consent to sex indirectly. By avoiding explicit statements and proceeding gradually sexual encounters can be walked bake and allow parties to adopt friendship preserving social fictions.

    This brings one to another huge problem with the California law. Even more so than laws against pot smoking it criminalizes essentially ordinary activity. As we have seen in the drug war when this happens the results of any adjudication tend to reflect social prejudices and biases rather than facts. The more the adjudicator can’t plausibly apply the law as written, as they would be sending all our college students to jail, the more they will substitute their prejudices about the merits of the individual. I mean do you really doubt this law will end up being applied disproportionately in cases where black men sleep with white girls rather than cases where guys the adjudicator implicitly judges to be more acceptable to young girls (thus making their claims of consent more plausible in their ears) like rich white guys.

    There are other harms as well. For instance, there is the effect of fear and deterrance to consider. Unfortunately, as tends to be the case for drug laws as well, people differ in their risk-aversion and the people least likely to be harmed by pot are those most likely to be dettered from using it by the law. Not smoking pot might not be a huge deal but if even a tiny percent of students on campus are denied meaningful and mutually rewarding sexual relationships by this law a huge harm has been done. Worse, the worst sexual offenders tend to inhabit an encouraging culture that will mock this new rule (and perhaps start undermining other sexual assault standards) so of the men willing to start a relationship the ratio will be shifted toward the worst kind.

    Moreover, by creating the public expectation that mere failure to affirmatively consent qualifies as assault one will increase the number of consensual but ill-judged sexual encounters that result in sexual assault disciplinary actions. I mean consider the effects this law has on women considering reporting a sexual assault. Those women who got drunk and were really taken advantage of have less incentive to to come forward, all the stigma and pain that deters rape victims from prosecuting will still apply plus the additional stigma of being seen as using these “puritanical” laws to get even with men. On the other hand women who simply have ill-judged but genuinely consensual sex, say with someone who isn’t their boyfriend, now have more incentive to lodge a sexual assault allegation as their is less perceived room for them to claim that “they didn’t really consent, it just happened” but that it didn’t really rise to the level of discipline worthy sexual assault. While I have no idea about the relative percentages of these events surely decreasing the incentive of “real” assaults to come forward while increasing (or just that perception) the incentive of people attempting to distance themselves from a intuitively consensual encounter to file disciplinary actions is surely bad.

    Most importantly, however, is (as you seem to agree in some sense) the message sent by this law. This law communicates two things to the general public. First, by insisting on a rule that everyone knows at some level to be deeply incompatible with the way actual human relationships work (take it literally and it would have to apply to every sex act inside every relationship since consent can’t simply be presumed because you are dating) it communicates the idea that SOMETHING must be done never mind things like due process, evidence etc.. etc.. This both increases the chance of improper disciplinary action AND plays into a societal backlash against any useful reforms.

    But the worst thing is that this law walks back a half-century of progress in which we repealed laws which embedded blatant prejudice into the fabric of our laws. Like “separate but equal” no one seriously believes this law even intends to create a gender-neutral standard of sexual consent. Yes, woman are far more likely to be sexually assaulted than men but this fact no more justifies enshrining inherently prejudiced principles into are laws than does the greater rate of violent crimes committed by blacks. It justifies creating laws that dispassionately address problems (like the use of past promiscuity as evidence). This law, even if enacted for all the right motivations, is clearly intended to be applied differently to men and women and for that flaw alone any benefit it provides will be dwarfed by it’s negative effect on people’s attitude toward the law in general.

  5. Peter Gerdes says:

    Also, I want to know what you seriously think about our laws about consent and intoxication.

    I’ve been married for over a decade now and we’ve had some great sexual times while one or both of us has been quite intoxicated and frankly I don’t know anyone who hasn’t had enjoyable intuitively consensual sex in a state that, under existing laws about the subject, would probably very well qualify as one or both parties as unable to give consent. Surely this shouldn’t be illegal nor, even, consensual satisfaction of fetishes about having sex with someone who is passed out. Indeed, I would think this is even a constitutionally protected right.

    Yet, that is what the law now seems to do. By both creating a standard that prevents one from granting prospective consent it seems to render illegal much intuitively acceptable behavior. Worse, any operative legal standard for inebriation will be blinding wrong….drunks get to have sex too even if they can have a BAC of .2 and be only a bit buzzed.

    I suspect it is concerns like this which lead many people, myself included, to think that legislative reforms of consent laws and sexual assault laws are simply outrage sops (think law and order: SVU) not seriously considered proposals to deal with the problem. I suspect an attempt to ban what we all intuitively recognize as non-consensual inebriated sex would be much more likely to succeed if it made the (even if you think it is purely posturing) gesture of simultaneously carving exceptions for the kind of intuitively consensual acts (drunk married people going at it etc..) that happen in real life.

    I don’t believe that all these laws are being pushed by some radical feminist agenda. No, they are being passed for all the usual reasons we pass bad laws. Voters don’t have the incentive to favor good policies because political posturing and voting have little policy impact (for the individual) but a great expressive and associative effect. Of course good people want to signal they disapprove of sexual assault, it’s a bad thing. However, until legislation stops looking like an attempt to show how much you dislike assault and more like an attempt to deal with a serious policy issue all it does is create further injustice (in both directions).