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The natural progress of things is for liberty to yield and government to gain ground. —THOMAS JEFFERSON, 1788

California activists seek to redefine quiet, consensual sex as rape through Senate Bill 967

sex week

How does classifying most consensual sex as rape help rape victims?  As a lawyer who has handled rape and sexual harassment cases, I have no idea, but this radical result is what some want to happen in California.  In endorsing a bill in the California legislature that would require “affirmative consent” before sex can occur on campus, the editorial boards of the Fresno Bee and the Daily Californian advocated that sex be treated as “sexual assault” unless the participants discuss it “out loud” before sex, and “demonstrate they obtained verbal ‘affirmative consent’ before engaging in sexual activity.”  Never mind that consent to most sex is non-verbal, and that rape has historically been understood to be an act against someone’s will, rather than simply a non-violent act that they did not consent to in advance.  Perhaps in response to the bill, the University of California, on February 25, adopted a policy requiring affirmative consent not just to sex, but to every form of “physical sexual activity” engaged in.

I and my wife have been happily married for more than a decade, and like 99.9% of married couples, we do not engage in verbal discussion before engaging in each and every form of sexual activity.  Indeed, in the first year of our daughter’s life, when she was a very light sleeper (she would wake up if you merely walked into her bedroom and stepped on a creaky part of the bedroom floor), it would have been unthinkable for us to engage in any kind of “out loud” discussion in our bedroom, which is right next to hers (the walls in our house are very thin, and you can hear sounds from one room in the next room). We certainly did not verbally discuss then whether to have sex.  Having sex quietly when you are a parent is a sign that you are considerate of sleeping family members, and have a healthy marriage, not of sexual abuse.

The affirmative-consent bill, Senate Bill 967, does not explicitly require verbal permission to demonstrate consent, although it warns that “relying solely on nonverbal communication can lead to misunderstanding.”  But supporters of the bill are very clear about their desire to require verbal discussion or haggling prior to sex.  The Fresno Bee praised the bill because “it adopts in campus disciplinary cases the ‘affirmative consent standard,’ which means that ‘yes’ only means ‘yes’ if it is said out loud.”  The Daily Californian declared that “the proposal’s requirement that defendants in a sexual assault case demonstrate they obtained verbal ‘affirmative consent’ before engaging in sexual activity makes SB 967  a step in the right direction.”  Since most couples have engaged in sex without “verbal” consent, supporters of the bill are effectively redefining most people, and most happily-married couples, as rapists.  By demanding verbal discussion before sex, they are also meddling in people’s sex lives in a prurient fashion.

Requiring people to have verbal discussions before sex violates their constitutional privacy rights, under the logic of Supreme Court decisions such as Lawrence v. Texas (2003), which struck down Texas’s sodomy law, and federal appeals court decisions like Wilson v. Taylor (1984), which ruled that dating relationships are protected against unwarranted meddling by the Constitutional freedom of intimate association.

It also serves no legitimate purpose, since even supporters of the bill, like Tara Culp-Ressler have on other occasions admitted that sexual violence is not the result of mixed signals: studies show that people who commit sexual violence are almost always aware that what they are doing is against the will of their victims, rather than the assault being the product of “blurred” communications.

The “affirmative” consent requirement would not help rape victims or prevent rape, since rapists, who already lie about whether they have committed rape, will just lie and claim the victim said “yes” to sex. A person who lies about committing rape will also lie about the presence of “affirmative consent.” A violent rapist is not going to suddenly change his ways just because someone tells him that consent (which he disregarded in the past by doing things against the will of the victim) must now be explicit or “affirmative.”

When I was subjected to unwanted intimate groping as a child, the perpetrator knew quite well that what he was doing was inappropriate. Defining sex as rape merely because there was no verbal discussion in advance trivializes rape and brands innocent people as rapists (including some people who themselves have been sexually victimized in the past).

Disturbingly, it’s not just sex they want to regulate, but also “sexual activity” in general.  The bill may require affirmative consent before multiple steps in the process of foreplay that leads to sex, even between couples who have engaged in the same pattern of foreplay before on countless occasions.  The bill states, “’Affirmative consent’ is a freely and affirmatively communicated willingness to participate in particular sexual activity or behavior, expressed either by words or clear, unambiguous actions. . . The existence of a dating relationship between the persons involved, or the fact of a past sexual relationship, shall not provide the basis for an assumption of consent.” This disregards common sense, since what people intend or consent to is often illustrated by the history or nature of their relationship, such as when courts determine the intent of the parties to a contract by looking at the past course of dealings between the parties.

The bill seems to be based on the false assumption that the more explicit consent is, the more pleasurable the activity consented to is.  But in the real world, the opposite is usually true, and the explicitness of consent is not a good gauge of an activity’s welcomeness.

For example, my wife and daughter never ask for, or seek, permission before they hug me.  Precisely because they know it would be welcome. Explicit consent is unnecessary when something is harmless and unobjectionable (or downright enjoyable, like sex between married couples).

By contrast, grudgingly consensual sex acts, like those between a prostitute and her clients, are generally preceded by explicit discussion and verbal agreement, because one party wants sex, while the other merely puts up with it to obtain money or other benefits.  A verbal request followed by an explicit “yes” often reflects an imbalance in sexual desire between partners, not the ideal in which  both partners deeply want it.  Rather than disrupting the rhythms of a couple’s lovemaking by requiring explicit discussion, these people should recognize that an explicit “yes” is not the ideal. When I told one of my past housemates, a court reporter who has taken depositions in sexual harassment and assault cases, about a similar proposed definition at Harvard, where I got my law degree, she was amazed. She could not think of anything more awkward than being asked point blank for sex by a would-be partner.

In addition to endangering privacy rights, SB 967 also contains provisions that could undermine students’ due process rights, such as mandating a low standard of proof for discipline, and encouraging anonymous allegations, as I explained in a letter published last month in the Sacramento Bee. The bill’s requirements apply not just to public colleges, but also to certain private colleges.

On February 25, the University of California system appears to have essentially adopted most of the requirements of SB 967, in a new policy defining “sexual assault” and “sexual violence,” defining it to include some conduct that is not violent at all.  What concerns me most is that the policy defines “sexual assault” to require “unambiguous” “affirmative” consent prior not just to penetration (which is not always unreasonable if consent is defined to include non-verbal cues as well as verbal responses), but also “physical sexual activity” in general.  Effectively, this might ban foreplay as it commonly occurs among married and unmarried couples alike. Things like vaginal intercourse generally are in fact preceded by non-verbal affirmative permission, since it generally requires physical movements by both parties to facilitate.

But most “sexual activity” falling short of actual intercourse (i.e., foreplay) is not preceded by affirmative permission or consent.  Instead, it is often acquiesced in by the recipient as part of a process of gradual escalation in which each partner engages in a new form of intimate contact that the other acquiesces in.  For example (and I regret the necessity of providing these graphic examples, which are necessary for the sake of clarity), the husband starts touching or licking his wife’s breasts to see if she likes it and to turn her on, or the wife grabs the husband’s member while in bed with him engaging in foreplay (to get him firm enough for penetration), that might constitute sexual assault under this policy, even if it is welcome and enjoyed.

Why? because it is not preceded by “an affirmative . . .  decision” to consent by the recipient, but rather is initially acquiesced in.  The “consent” follows the activity, rather than preceding it, meaning the activity was potentially non-consensual for at least a brief time before the recipient became aware of it and consented to it.  These activities are essential to foreplay, and are a step-by-step process that would be ruined by explicit discussion at every step (it would ruin the mood, thus defeating the very purpose of foreplay). My wife would be very annoyed if we verbally discussed these things.  Thus, both husband and wife are defined as sexual assault perpetrators by this bill.  Requiring consent in advance under these circumstances is sexually repressive and unfair.  Foreplay is a long progression of steadily escalating intimacy in which the partners alternately initiate and acquiesce in deeper intimacies, not a sudden act that requires prior discussion.

Yet, the University of California policy says:

“Sexual Assault occurs when physical sexual activity is engaged without the consent of the other person or when the other person is unable to consent to the activity.  . . .Consent is informed. Consent is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. . .Consent means positive cooperation in the act or expression of intent to engage in the act . . . Consent to some form of sexual activity does not imply consent to other forms of sexual activity.  Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion.  A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. . .Consent must be ongoing throughout a sexual encounter.”

Although this language is vague (at one point, it allows consent to be based on “positive cooperation,” which might extend beyond consent in advance), it clearly defines some sex and sexual activity as sexual assault on campus, even if it would be perfectly legal off campus (it does so even more clearly than SB 967 does).  It does that even though college students are largely adults who have the right to vote, get married, and serve in the military. For example, students have First Amendment rights that are largely “coextensive” with their rights in society generally, as the Supreme Court has indicated in decisions such as Papish v. University of Missouri Curators, Healy v. James, and Rosenberger v. University of Virginia. (Disclosure: I used to practice education law for a living.).

The assumption seems to be that California’s general definition of sexual assault, which applies off campus, is too narrow.  But this assumption is dubious, and in a few rare situations, the existing California definition of sexual assault may already be too broad.  Men and women involved in sexual relationships learn the intimate preferences of their partners.  As a result, they often know without discussion when their partner desires sex, and can often tell in advance from context whether their partner will welcome a particular sexual act.  For example, the former girlfriend of  a college hallmate of mine at the University of Virginia would sometimes awaken him through oral stimulation, evincing her desire for intercourse, which generally ensued between them without discussion.  Under existing California law, this pleasurable activity is already treated as sexual assault, since a California appellate decision ruled that people cannot consent to future sex while incapacitated.  But every person who heard this anecdote thought my hallmate was a lucky man, not a victim of sexual assault (the pleasure of sex may in some cases be enhanced by the element of surprise).  Thus, the current California legal definition of sexual assault might already be too broad, not too narrow, in such situations.

Hans Bader

Hans Bader is Counsel at the Competitive Enterprise Institute in Washington. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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  • Xavier

    Is there an actual problem this is supposed to solve, or is this the sexual version of the toaster pastry gun law?

    • Freddy Neat Shee

      Statism is the constant, unending fear that somewhere, somehow, someone may be having some fun.

  • max_hedroom

    How can you tell who raped who if it was consensual? This is the beginning of the end of western civilization. Men will be driven from colleges. It’s feminist extremism at it’s worst.

    • http://www.youtube.com/B4ULoveShine Just Tim

      The USA is falling like Rome.

      • Grundo

        The CIA funded Ms. magazine at the start of feminism in order to establish a national internal threat narrative, targeting men, and bring down the USA. This has all been carefully planned and orchestrated. Historically, internalizing the threat narrative always eventually brings down empires.

      • http://www.youtube.com/B4ULoveShine Just Tim

        …and families too. Case in point: my own personal life.

    • Szebran

      Kicking men out of college on false rape charges means less men earn degrees which inturn means more high paying jobs for women. That is the feminist intent.
      http://antifeministsite.blogspot.com/2014/03/thinkprogress-goads-false-rape-charges.html

      • DukeLax

        Not all males are being targeted by American gender-feminism equally.

  • David R. Usher

    This is twisted feminist legislation and a set-up for rampant rape allegations. The only way to adhere to the standard is to execute a signed letter of consent — a physical contract — with copies for both parties. An utterance is neither provable or disprovable — the bill assumes that rape has occurred if one cannot prove that “yes” was said, for each and every time a couple has sex.

    • Jerry S

      The contract will be useless. See my comment above.

      • Grundo

        It of course will have to be notarized and filed with the county seat, given 10 days to cure, and then you can have sex.

      • Jerry S

        LOL!

    • DukeLax

      The re-definitions will be incorporated into American law enforcement with absolutely no discussions outside gender-feminist circles.
      U see, the more they can re-define rape, the more American law enforcement can pervert what the meaning of is, is, in order to manufacture the 2% false number.
      With these new definitions and manufactured statistics alliances…both can feed off the near endless supply of federal pork bloating dollars.

  • banger377

    Good idea! It’s called the “Slut Identification and Registering Program” aka SIRP. All cheap women will be on that list the rest of there life, brought to you by Homeland Security. Don’t worry, they promise not to look on the list for local enrollee’s.

    I wonder if married women will be required to call in before hitting the sack. Oop’s, don’t want to give any of these superior people any idea’s!

  • Slayer

    What a load of fem-shit

  • Msc. Aoirthoir An Broc

    Actually they are right. MANY women have phorced rape on men by NOT getting ACTIVE AFFIRMATIVE YES phrom those men. MOST ALL women have done this..so ALL women are rapists…

    • Heather LaPlante

      Everyone is a rapist.

  • milkawhat2

    It has to be in writing… and notarized by an official witness. This will allow for a ,’certified consent official’ job surge, along with training, state certification, Gov’t money to help Minorities. Also as there will be a shortage of ‘CCO’s, a market for ‘Certified Consent Futures’ will emerge, where women pre-pay for a set amount of,”Yes, I’ll do him”certificates. Naturally, the Unions will demand control, and work rules will cause a substantial delay in approvals, thus reducing the, ‘Average bang per hour’ to unsustainable levels. The population will shrink, everyone will be irritable, and the people who think up this sh&t will have lots of company for their miserable lives

    • eccles11

      Fornication Under Consent of the Dean.

    • Jerry S

      Unfortunately, as surreal as you sound, you’re probably 100% right.

    • PeterAndrewNolan

      Hysterical! But very much on the mark of how things are done today. Which is why we created a whole new jurisdiction outside the criminal cartel known as government.

  • PeterAndrewNolan

    5.5 years ago I said that it was very likely that in the future men will require sex contracts to defend themselves from rape allegations.

    Everyone laughed at the idea.

    Well? Anyone willing to laugh at that idea now?

    • Jerry S

      The contract will not be of any value. There will appear more than enough ‘white knight’ judges who will rule said contract null & void, as witnessed last year in a NY pre-nup case: http://www.abajournal.com/news/article/ny_appeals_court_voids_prenup_due_to_millionaires_alleged_oral_promises_to_/

      Here’s an interesting Forbes article on this topic: http://www.forbes.com/sites/jefflanders/2013/04/02/five-reasons-your-prenup-might-be-invalid/

      • PeterAndrewNolan

        And who said the contract would be adjudicated by a criminal masquerading as a judge in the current legal system? I didn’t.

        We have created a whole separate system of law and we will adjudicate our own contracts thank you very much.

        The current legal system is a criminal cartel. There are no honest judges in the western world.

      • Jerry S

        1. “The current legal system is a criminal cartel.”
        Amen!
        2. “There are no honest judges in the western world.”
        I haven’t met them all, but judging by the ones I have met, you’re probably right.

      • PeterAndrewNolan

        Once you understand the legal system you realise that the judges can not be honest.

        I have had first hand dealings with judges in Australia, Ireland and Germany. I have also advised and worked with people in the US, Canada, UK. The legal system itself is a criminal cartel and so if you are participating at the level of a judge you can not be honest.

        My court meeting in Germany was with a very junior judge over a matter as small as overstaying an alleged “visa” by 10 days. He pulled the same tricks as many more senior judges.

        So if a judge dealing with alleged visa violations of 10 days tells the same lies as a 20 year family court veteran judge you can be pretty sure they are all criminals.

        You can read about it in my books. I denied the jurisdiction of courts in Australia, Ireland and Germany successfully.

        http://www.a-man-zon.com/Categories/Books/B0000PeterNolan.aspx

      • mark-stephen:flowers(c)

        Rubbish, if you denied the jurisdiction of the German Government, how are they able to rightfully deny you the right to work in your country? How are the Irish Government able to deny you citizenship and rightfully toss your fat arse in jail should you ever dare to return to the Republic. Why are you scared to return to Australia, lest that country’s “Guvment” rightfully incarcerates you under the mental health act?

        People – read all about this deluded conman, and follow his advice at your peril:

        http://peternolanstalker.blogspot.com.au/2012/11/peter-andrew-nolan-wanted-in-four.html

      • Illuminati Ingrid

        Read all about Nolan here – he’s winning friends all over the www!

        http://www.avoiceformen.com/mens-rights/peter-andrew-nolanc-a-danger-to-self-and-others/

  • J.e. Dyer

    These poor people — the advocates of such legislation — have no idea how closely they resemble the overweening moral legislators they decry from Western history. Judging whether sex was consensual turns out to be suspiciously similar to judging whether a woman is a witch, among other things.
    It all begins to turn on little things that cannot be DISproven, until it’s clear that the main turn at issue is that of the thumbscrew. God save us from such a concept of law and government.

  • eccles11

    There is a large trend in modern feminism that begins to resemble many attitudes towards sex that conservative religions do. When someone has to specifically label themselves a “sex positive feminist”, that speaks a lot about where the mainstream is headed.

  • Paul Elam

    Men’s Rights Activists have been writing about the redefinition of rape and the strategic production of rape hysteria for years. What has happened in response, including from so called Libertarians and Constitutional conservatives, is that we have been called nut cases.

    This bill is not only not surprising, it was entirely predictable. And it is going to get worse.

    It is time for people to quit reacting mindlessly and reflexively to protect women and start looking at how that reflex is being manipulated to pass draconian measures that undermine everyone’s Constitutional rights.

  • Albertflasher10

    I want to know when someone will propose a bill that will mandate the prosecution of proven false rape charges. As it is now, men can be falsely accused of rape, child molestation and more by women and there is no force of law to prosecute the false accusers. In fact, law enforcement will go out of their way not to prosecute by saying prosecuting the (criminal) accuser will cause real victims not to come forward. So, when men are victims, it’s not an issue? A crime is a crime. False accusers should have to face the same penalty that their victim would have faced. Why are there no politicians out to protect men from predatory women?

    • Tiffany Palen-Edwards

      I absolutely agree! I would also like to see those women held accountable that intentionally deceive men about paternity of a child. They need to start taking some personal responsibility or face the consequences….

  • Xavier

    At the core, this is a way to selectively prosecute – or, punish without actually prosecuting – anyone who is a chosen target. Sound familiar?

  • madsahell

    From the same people who whine so loudly about keeping government out of the bedroom when it comes to protecting their sexual perversions and proclivities. .. but when it suits their feminazi agenda, well……

  • StRaNgEdAyS

    So when will you all have to start registering your penises as offensive weapons?

  • Bismarck Okolongo

    What? You wanna tell me feminists are crazy? Who knew?

  • Gal Spunes

    Time for some good ol’ fashioned hillbilly palm-rape.

  • Xavi’

    This is just one of many Feminist onslaughts against civilisation, this is just one of their weapons in their arsenal, they have many more grievances. There are only two options. The Government/State that depends on women’s votes and in turn allows these sociopaths to propose legislation of which cowardly males and Misandrist females gladly pass needs to be destroyed permanently or Feminists need to die. There is no middle ground and I am tired of the word games.

  • Adam

    Feminists are nuts, who would have known.

  • Megalith

    Retroactive abortions should be temporarily legalized so we can get rid of these idiots.

  • DukeLax

    When American law enforcement are called to a “domestic” at a homo-sexual household…both parties are treated as equals in the eyes of the law.

    When American law enforcement are called to a ” domestic” at a hetero-sexual household..the hetero-male is clearly discriminated against vis a vis the hetero-female.

    As the American law enforcement perversions and manufactured statistics Alliances continue to turn hetero-relationships into legal liabilities for guys, the very few guys who do get into a hetero-sexual relationship are going to start to demand Equality in the eyes of the law.

    They are going to start to demand that the perversions and manufactured statistics alliances that discriminate against them…be dismantled!!!

  • Puresnow

    Next they will want it in writing: I, ____, consent to kissing and petting before 11:00 p.m. After 11:00 p.m. I hereby consent to _____, ______, _____ only. Signed…..

  • Grundo

    I think this would violate the Americans with Disabilities Act, as it would prevent deaf/mute persons from ever getting laid.

  • MGTOW 4Ever

    I have been asking my GF for sex verbally for years. In fact I get texts. I know how the system will nail me to the cross if I don’t have proof. I have CCTV not on the outside but on the inside. I am glad they are passing this law the quicker this stupidity take effect the faster the society will collapse. Just look at Japan, Poland and Germany hell even Russia in the next 30 years. You will see America is not that far behind in the Demographic winter that’s coming. Until then I will Ghost, No kids, No Co-habitation, No Marriage and No Taxes for the system that hates me. MGTOW and Herbivore men will bring down the system.

  • Grant

    Excellent article Mr. Bader! I would, however, like to disabuse you of the notion that both participants will be branded as sexual assault victims. This bill was written by the same type of people who believe “rape represents an extreme behavior but one that is on a continuum with normal male behavior within the culture” -Koss (feminist). Remember, even according to the CDC men cannot be raped: “being forced to penetrate is a form of sexual victimization distinct from rape” -national intimate partner & sexual violence survey.

    In this case, men will be branded as sexual assault perpetrators, females as helpless victims. I can only hope that the California supreme court sees the folly in this, but am not holding my breath given how due-process rights are being stripped from men on campus.

  • Vox_Clams

    They told me that if I voted for Mitt Romney, government would be in bedrooms throughout the country, and well ….

  • Donna Scalett

    The falling USA, God help us.

  • Vidmagic

    I fully support this bill but only under one condition….that it be made retroactive thus adding the guarantee that every male politician in the state of California would be placed behind bars. Now lets see who would vote for it.

  • Vidmagic

    I can’t define consent but I know it when I see it.