The standard for consent in sexual encounters has changed drastically in recent years. On campus, the redefinition of sexual assault in the wake of #MeToo and #BelieveAllWomen is weighted toward the accuser, not the presumed innocence of the accused. Often, alleged assaults are tried in campus tribunals, not courts of law, with the burden of proof on the defendant. This week, the American Bar Association considered recommending changes to the law, so that defendants must prove that affirmative consent was obtained at all stages. But ‘affirmative consent’ would destroy due process — and be a death knell for sex.
The resolution, which thankfully was opposed, urged legislatures and courts to ‘define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.’
This concept inverts due process, wherein the accuser must prove guilt. It also rejects the confused evidence of reality. If two people get drunk and go to bed together, it’s not just the person who will be penetrated who needs to be competent enough to consent. The penetrator also needs to be clear-headed enough to know that the other party is competent enough to consent. Making the man the judge of a woman’s competency denies women’s ability to make her own choices.
Women are quite capable of consenting to getting drunk and having sex without that sex being a crime. Making the choice to get fucked up and screw is a choice that women are as capable of making as men. Often people make that choice together, and often both regret it later. But regret is not sexual assault. We used to know this.
Men are not sexual masterminds or Don Juans, luring unsuspecting women into bed. Most guys are as confused and uncertain about how to proceed in sexual and romantic relationships as women are. We forget this when we adopt legal language that defines sexual assault too broadly, and with expansive culpability.
A friend told me years ago of a sexual encounter she had when she was a teen with her then-boyfriend. The two had not been sexually active, but one evening they got to it. In telling me this tale a decade back, it was the story of a sloppy, drunken mess that she didn’t enjoy but had a laugh over. In retrospect, she has reframed this encounter as rape. Her understanding now is that she didn’t want it then.
Another woman told me of a time when she slept with a man she met at a club. He’d offered her a lift home, and she took it, not realizing that by ‘lift’ he meant, ‘let’s have sex in the car.’ As she related it to me, her thought process was, ‘Meh, I just wanted to get home, so I went with it.’ She does not consider this rape, even though she wasn’t into it. The sex was transactional and didn’t mean that much to her.
By the ABA’s affirmative consent resolution, both of these sexual encounters could have been considered rape. The man would be liable for not having obtained a big enough ‘yes’. The burden of proof for not having raped her would be on him. Women who reframe their stories will simply be believed. Empathy might makes us want to believe any accuser, but that is simply not good law. It would behoove campuses and lawmakers to heed the ABA’s defeat of the resolution.
The crime of seduction, a man luring a woman to bed under false pretenses, is still on the law books in many states. Once, if an offer of marriage was never honored, the woman, her virtue sullied, would be able to bring charges. The burden of proof was on the woman, who had to prove that she had been unwittingly seduced. Her sexual history would be brought to bear, and she would have to show that she did not make a habit of being sexually available.
Seduction is no longer prosecuted. Seduction law was overprotective of women who did not need the state’s protection from all those bad men. Rape laws also used to examine and judge a woman’s sexual history. That too has changed. If both parties are equals and equally responsible, then neither party should be entirely responsible for gaining or giving consent. So the weighted criteria of affirmative consent should not be law, any more than the crime of seduction should be law.
Calls for affirmative consent are an inevitable backlash to the sexual revolution, which devalued intimacy for both men and women. Affirmative consent is a way to try to wrest some of that value back, but it’s the wrong way. The genie of equality, and hence responsibility, is out of the bottle. The path to intimacy in sex is with a loving partner, through mutual passion, love, respect, and an ongoing conversation about consent. Sex is not something women treasure and men try to purloin. As Maude Lebowski tells The Dude in The Big Lebowski, it’s a ‘natural, zesty enterprise’.
If affirmative consent were to become the new standard for criminal sexual assault, we will have reconsider what sexual relationships are all about, and get a little reactionary about them. If women can bring charges because they didn’t consent affirmatively enough or felt they were coerced, or if men are at risk of being accused of sexual assault simply because they misgauged their partner’s competency for consent, then the only safe sex will be within committed relationships. The ‘affirmative consent’ concept was born out of the sex positivity movement. It would be pretty ironic if it spoiled hook-up culture and led to the death of casual sex.