Why California’s Active Consent Law Is Not An Outrage

California Governor Jerry Brown signed the state’s Active Consent bill yesterday, making it law in California that in order to receive state funding, universities must have policies stating that students must obtain verbal or nonverbal consent before having sex (a lack of objection or resistance does not constitute consent), provide victims’ advocates, teach incoming freshmen about consent during orientation, and not punish victims for underage drinking when they come forward.

I don’t know why there’s a chunk of people who are invested in claiming this is an outrage — OK, I have some ideas, and they mainly have to do with fairly predictable pushback to social change. The bill has had its critics, as has the idea of affirmative or active consent in general. Here’s why this bill (now law!) is by no means an outrage:

1. It works for male students, too. Many critics have claimed that affirmative consent policies are a threat to male students, but miss the fact that these policies do not say that rape only happens to women, that men are always the perpetrators, that men aren’t allowed to come forward about their rapes. The people who criticize affirmative consent policies are frequently also the people who claim that male sexual assault isn’t taken seriously enough – including Cathy Young, who’s linked above, and who has previously pointed out that by the CDC’s numbers, men are raped via forced penetration as frequently as women are raped (around 20 percent of men and women). This policy is good for both men and women: The victim’s advocates will be there for any student. The real issue is getting male victims to come forward.

2. False rape accusations are still a red herring. Brittany Greenquist asks if this and similar policies will be “an easy means for false accusations,” and Young implies that it will, even though Young herself acknowledges that the best numbers we have indicates that “unfounded” rape accusations fall around 6-8 percent of all reported rapes (without mentioning the fact that, first of all, “unfounded” doesn’t necessarily mean “false,” and second, by the best numbers we have, the vast majority of rapes go unreported). Which isn’t to say that false accusations aren’t important, it’s just to say that it gets a lot of air time in proportion to the rate of its occurrence. Affirmative consent will not increase the rate of false reporting or make it easier to lie about rape, not least of all because a false accuser’s motivations for lying aren’t going to change because the definition of consent is changing.

3. The definition of what’s “sexy” or “normal” during the course of flirting a sexual encounter isn’t static, and isn’t the point, anyway. The really pointless outrage over affirmative consent has to do with the idea that it’s tedious, clinical, and unsexy to obtain a “yes” from your partner during an impassioned sexual encounter (see Rush Limbaugh’s disgust over the idea that we’re losing “the art of seduction” vomit vomit vomit). Our standards for what’s “sexy” can change. I know that a lot of feminists hate the idea of sexualizing consent, so I’m not going to say “consent is sexy!”, but I will say that it can be, if that’s what you’re worried about, and it’s sexually unimaginative to believe otherwise. But it really isn’t the point: What’s more important to you, lowering the frequency of sexual assault, or upholding old sexual behaviors? Will you refuse to adapt to new ideas about sex because you’re stubborn about your right not to obtain a “yes” from your partner?

I’ve said it before and I’ll say it again: It sucks that we have to legislate decency. I’m not a fan of enforcing new social norms by means of the law. But with campus rape investigations being an absolute shitshow, what else are we supposed to do? Nothing? Instead of hearing outrage, I’d like to hear acknowledgement and any ideas for alternative solutions.

[NY Times]
[Real Clear Politics]
[Huffington Post]

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