"Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.Jon Chait, David Bernstein, Batya Ungar-Sargon, Cathy Young, and Michelle Goldberg (among others) all cry foul. There are several themes to their complaints, which I feel are worth addressing.
First, let me take a moment to articulate what I take this bill to mean. Put simply, I think "affirmative consent" means nothing more than that the person involved actually consents. "Consent" does not spring into being other than by a conscious decision of the participants that they are consenting. We're looking to the state of mind of the sexual participant -- do they conceptualize themselves as consenting? Other models of consent don't really ask this question, because they're looking to the state of mind of the accused. Did something happen that might have put him on reasonable notice that his partner was not consenting? "Silence" supposedly won't cut it because, well, why should he infer anything at all from silence? Silence isn't evidence, it's a lack of evidence. Note here the default assumption that a women is consenting to sex that occurs, which can only be rebutted by some overt act withdrawing it--traditionally restricted to physical resistance although now more expansive ("no means no")--giving the man knowledge that his partner does not consent and the sexual act is now illicit. Silence is presumed to be consent because no affirmative step was taken to withdraw consent; the burden is on the woman to withdraw consent rather than on the man to procure it.
This has several important implications. First, either way we're going to require an "affirmative" act of something -- consent or nonconsent. Either the man is responsible for taking steps to ensure consent exists or the woman is responsible for taking steps to confirm that it doesn't. It is unclear why, between these two competing candidates for positive obligations, the former is so much worse, so much more onerous, than the latter.
Second, recognizing that "affirmative consent" means the existence of actual (not just presumed) consent counters the claim that there is a disjuncture between the "letter of the law" and what will actually be prosecuted under it. The claim here is that while a great many sex acts will "technically" be rape under the statute, we need not worry because the partner allegedly victimized won't press charges (presumably since she actually was fine with the sex). The "problem", we're told, is that this relies on underenforcement of a badly written law -- the sex in question is rape under the law, we're just depending on the beneficence of prosecutors to overlook it. But this seems to rest on a misunderstanding: I don't think under the California bill a case could successfully be brought if the alleged victim testified that she actually did consent. Nonconsent is still an element of the offense, and while it cannot be rejected simply from silence or a prior existing relationship, it obviously can be negated by an outright declaration by the supposed victim that actually, yes, she did desire the sexual activity.
This also relates to the supposed "ambiguity" latent in the definition of consent. How will we know if consent does not exist absent an overt declaration to that effect? I could retort "how do we know if consent exists absent such a declaration" -- a response that demonstrates that this debate is actually about default rules. Do we presume a woman consents unless she manages to convince us otherwise? But the bigger point is that both the call and the response are absurd, resting on a naive belief that (on the one hand) verbal declarations are infallible and (on the other) there is no other means but through verbal statements to reliably communicate information. Does any one believe this? Of course not. If a woman says "yes" with a knife to her throat, we all are quite capable of using context to disregard the statement. And if a woman violently thrashes about or tries to flee the room, I can't imagine we'd likewise have any difficulty inferring nonconsent regardless of whether she actually said "no" or not. If we can do it for nonconsent, why not consent?
Indeed, to a large extent I find the focus on what we supposedly can't infer from "silence" to be nothing short of bizarre. I'm imagining a completely inert woman, who says nothing, does nothing, takes no voluntary action or otherwise exhibits no signals or reaction whatsoever to an ongoing sex act. Having sex with such a person strikes me less as "the grey area between consent and nonconsent" and more like necrophilia. Far from wondering what it means if your partner is completely silent and completely nonresponsive to one's sexual advances; that to me seems to raise very little doubts regarding whether actual consent has been obtained. Does anyone even desire sex like this while still purporting to want a consenting partner? I'm no Casanova, but I'm pretty sure that if your sexual escapades are occurring in complete and utter silence that should be a red flag no matter what your beliefs about sexual assault might be.
This is not to say there are no cases where there might be ambiguity. But ambiguity is inherent in any legal standard. Consider the facts of State v. Rusk (facts recounted at the link). That case, I think, is very easy under an "affirmative consent" rule but obviously quite difficult under the default rule where one needs to affirmatively demonstrate nonconsent. Another case I recall (unfortunately I can't find it) involved a woman who was jogging in an isolated wooded area. A man who outweighed her by over one hundred pounds literally lifted her up and dragged her off the path, and proceeded to have sex with her. She testified that she didn't resist (futile because of the size differential) or call out (futile because of how far away she was from civilization), figuring that either action might provoke the man to greater violence. Does her "silence" mean consent? What about "I don't know if we should -- my husband is in the next room"? If the man keeps going, has she consented or not? Two can play at the ambiguity game.
Finally, I want to briefly address a complaint I've seen from several sources -- that the California definition of consent is flawed because it would label huge swaths of the American population as rapists. Bernstein's title gets the point across in blunt fashion: "YOU are a rapist; yes YOU!"; and a significant portion of Chait's piece is focused on this concern as well. As a descriptive matter, I have no idea whether this is true -- have most people had sexual encounters where there partner actually did not consent to the act (even if, in their own head, we might have thought they did)? But I want to flag it because I think it presents a very odd -- yet very widely held -- normative position: that by definition rape must be something that is rare (or at least, confined to a narrow class of perpetrators). A definition of rape that encompasses lots of people as perpetrators is, by virtue of that fact, a flawed definition. I raised this possibility in Sticky Slopes -- that we inversely relate the severity of a norm (how bad is rape) with its scope (how many behaviors do we categorize as rape). There is no intrinsic reason, of course, why any such relation should exist. Rape can be very evil and heinous and widely implicate large portions of the American population. There is no rule that says evil must be confined to a narrow band of recognized evildoers.
I should say that Chait, at least, seems to also be making a prescriptive point that where behavior is widespread then sweeping moral condemnation of it is unlikely to be successful. He has some empirical backing for this position (Dan Kahan's work on "gentle nudges" versus "hard shoves"), and that is worth considering to the extent our primary concern is changing behavior. But I want to reemphasize that, while this may accurately describe our moral outlooks, it does not dissipate the strangeness of that conclusion. There is something odd -- almost cheating -- in arguing against a moral claim solely because it would condemn common behavior. It's a naturalistic fallacy on steroids.