“If you’re a college student in Connecticut and want to have consensual sex, you might want to leave the state to do it,” reports The College Fix. The state’s left-leaning “legislature approved an ‘affirmative consent’ bill Wednesday night that now goes to Democratic Gov. Dannel Malloy, a proponent of the idea that sex is rape if one partner does not get the other partner’s repeated and mutually-agreed upon consent throughout the act.” All Democrats voted in favor of the bill; only a handful of Republicans like Senator Joe Markley voted against it, citing its meddling in college students’ consensual sex lives. As we’ve previously explained, “affirmative consent” bills misleadingly define consent so narrowly as to brand many welcome, mutually enjoyed consensual encounters as “sexual assault.”
Ashe Schow of the Washington Examiner writes that
Connecticut is one step closer to ensuring college students are easily accused of sexual assault for not following a government-mandated list of rules for the bedroom.
The state senate, late Wednesday evening, passed an affirmative consent bill — or “yes means yes” legislation — designed to force students engaging in sexual activity to follow a question-and-answer formula. From the moment the students are about to touch, they would have to ask: “May I kiss you?” “May I touch you here?” etc.
Proponents of the policy insist this isn’t true, that the bill merely defines consent as an “active, clear and voluntary agreement by a person.” But that is not the only language in the bill. Similar bills have passed in California, Hawaii and New York, and while they allow nonverbal communication to count as consent … there can be too much ambiguity in a nod or a moan.
The policy decouples context from the totality of the sexual experience. If a student fails to ask for permission before one escalation, but asks for it for a different escalation, the entire encounter can be considered sexual assault….
The policy also states that silence does not equal consent. But it doesn’t equal sexual assault either. Yet under affirmative consent, it does, unequivocally. Past sexual encounters between two people also don’t count as consent, so even people in years-long relationships are required to follow these rules or they’ve committed rape (unless, of course, no one reports it).
That’s the thing about these policies: No one has sex this way, which means every student (even the accusers) are sexual assaulters and sexual assault victims.
Ezra Klein is the editor-in-chief of the politically-correct publication Vox, and a leading supporter of California’s “affirmative consent” law, on which Connecticut’s law is modeled (although Connecticut’s is worse). He says that it will define as guilty of sexual assault people who “slip naturally from cuddling to sex” without a series of agreements in between, and “create a world where men are afraid,” which he justifies by saying that “men need to feel a cold spike of fear when they begin a sexual encounter.” He writes that California’s “Yes Means Yes” law
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tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test. The ‘Yes Means Yes’ law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value … If the ‘Yes Means Yes’ law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it … Men need to feel a cold spike of fear when they begin a sexual encounter … To work, ‘Yes Means Yes’ needs to create a world where men are afraid.
In a related vein, the New York Times quotes the developer of the affirmative-consent “Yes Means Yes” curriculum admitting that under “Yes Means Yes,” “you have to say ‘yes’ every 10 minutes” during a sexual encounter to avoid sexual assault charges, resulting in constant awkward communication:
“‘What does that mean — you have to say “yes” every 10 minutes?’ asked Aidan Ryan, 16, who sat near the front of the room.
“‘Pretty much,’ Ms. Zaloom answered.”
It quotes a female student calling that “really awkward and bizarre”:
“The students did not seem convinced. They sat in groups to brainstorm ways to ask for affirmative consent. They crossed off a list of options: ‘Can I touch you there?’ Too clinical. ‘Do you want to do this?’ Too tentative. ‘Do you like that?’ Not direct enough.
“‘They’re all really awkward and bizarre,’ one girl said.”
Radical lawyer Ron Kuby also supports affirmative-consent legislation, saying,“It may take the fun and spontaneity out of sex, but I don’t care.” Another supporter of “affirmative consent” legislation crowed that it requires “state-mandated dirty talk” during sexual encounters. Some colleges with “affirmative consent” policies classify even ordinary “kissing” as “sexual activity” that can constitute “sexual assault,” notes Ramesh Ponnuru at Bloomberg News, while other colleges define it much more narrowly.
As we have previously noted, affirmative-consent legislation violates constitutional privacy rights, since it substantially burdens fundamental rights in an arbitrary way. It restricts the sex lives of college students, but not non-college students, even though sexual assault rates are higher off-campus than on-campus for young people, as studies cited in the Washington Post and Daily Beast have noted. As the Washington Post observes, “A new study from the Bureau of Justice Statistics, working with a large survey-based sample, actually finds that between 1995 and 2013, college-aged women were 1.2 times more likely to experience rape or sexual assault when they were not in college.”
Thus, there is no valid basis for the distinction it draws, much less a showing that it is narrowly-tailored to a compelling government interest. [See, e.g., Lawrence v. Texas (2003); Wilson v. Taylor (1984)]. It also forces some people to engage in pointless compelled speech, such as “state-mandated dirty talk,” which creates First Amendment problems, under the Supreme Court’s 1977 Wooley v. Maynard decision. By creating a climate of fear, and mandating uncomfortable dirty talk, it also may contribute to a sexually hostile educational environment in violation of federal law.
Affirmative-consent legislation has been criticized for violating privacy and due process rights by the Foundation for Individual Rights in Education, former ACLU Board member Wendy Kaminer, the Orange County Register, and columnists such as Amy Alkon, Megan McArdle of Bloomberg News, Cathy Young of Newsday, Batya Ungar-Sargon of the New Republic, and Jonathan Chait at New York Magazine. Affirmative-consent legislation has also been opposed by the editorial boards of newspapers such as the Los Angeles Times, Orange County Register, and New York Daily News.
Depending on how it is interpreted, Connecticut’s affirmative-consent law, HB 5376, may violate due process by excluding critical evidence of consent. Ominously, the law says that “the existence of a dating relationship or a past sexual relationship between persons shall not constitute consent to engage in the sexual activity.” It is certainly true that being in a sexual relationship or dating relationship does not give anyone the right to force sex on anyone else. But the existence of a sexual relationship is often highly relevant to the issue of consent, providing powerful circumstantial evidence of consent.
As courts have noted, the existence of a relationship, and a couple’s past consensual sexual activity, sheds crucial light on whether it is plausible that the couple later willingly engaged in the same kind of activity. For example, State v. Garron (2003) reversed a sexual assault conviction because the court had excluded much of the complainant’s overall “course of conduct over a six-year period” with the accused. Evidence relevant to whether she consented included her “repeated physical contact” with him, and her past “kisses” of him and “grabbing” his “derrière.” This court decision is particularly noteworthy because it is from New Jersey, the state whose definition of consent to sex is the narrowest of any state in the country, and one that is sometimes pointed to by affirmative-consent activists as a model (and viewed as encroaching on constitutional privacy rights by some critics of affirmative-consent legislation). The law has always recognized that consent can be implied from past relationships between two people: for example, in commercial law, consent can be implied from the parties’ past “course of dealing,” or “course of performance.”
Connecticut’s law appears to wrongly reject some time-honored forms of consent, such as passive consent, since it declares that “‘Affirmative consent’ means an active, informed, unambiguous, and voluntary agreement by a person to engage in sexual activity with another person that is sustained throughout the sexual activity and may be revoked at any time by any person.”
This “agreement” requirement is misguided: There are lots of things in this world that I like, and view as consensual, that I never “agree” to, such as when my daughter suddenly hugs me without asking for permission, or my co-workers surprise me by leaving a snack on my desk. “Agreements” are for dry legal contracts, not warm, spontaneous human interactions. But now, Connecticut college students have to reach an “agreement” on everything, which could lead to some very uncomfortable conversations in the bedroom.
In practice, these “affirmative” consent laws discriminate against people in long-term, monogamous relationships, like married couples. Verbal consent, and other types of “unambiguous” “affirmative” consent, occur more in fleeting sexual relationships than in long-term relationships. Out of necessity, people explicitly negotiate with hookers and virtual strangers, as to whom there is thus verbal, “affirmative” consent (like a hooker and a john haggling over exactly what sex to engage in for what price, with has to be explicit because one doesn’t want sex, and the other doesn’t want to pay). Such verbal discussion is often unnecessary among people in committed relationships, among whom it generally doesn’t happen regarding intimate touching, and who know their partner’s general sexual preferences from past experience.
An “affirmative” consent requirement does 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. 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, some of whom are themselves sexual assault victims. Some sexual assault victims oppose affirmative-consent legislation, like the disabled sexual-assault survivor who testified against the Connecticut affirmative-consent bill, arguing that it will be especially harmful to disabled people.
