California’s Terrible New ‘Affirmative Consent’ Law

Cross-posted from Cognoscenti

I’m a feminist, or so I have always thought, given my decades of advocacy for unqualified sexual equality and reproductive choice. But according to Gloria Steinem and sociologist Michael Kimmel, I am an “opponent of women’s equality and their right to make decisions about their own bodies.” Why? Because I oppose California’s new affirmative consent legislation governing sexual conduct on college campuses.

Why is support for this bill a test of your commitment to equality? In their New York Times op-ed, Steinem and Kimmel suggest that requiring each person involved in a sexual encounter to obtain “ongoing affirmative consent” is the only reliable defense against legalized rape. “Only an explicit ‘yes’ can be considered consent.”

I wonder: Have Kimmel and Steinem abided by this rule themselves and requested, received and rendered ongoing affirmative consent throughout every one of their sexual encounters over the years? I doubt it, and I wonder, too, how any adult with a history of sexual activity can reconcile legal theories of explicit, ongoing affirmations with real life, human behavior.

The sheer infeasibility of a just say yes, over and over again, rule has been the subject of many appropriately scathing critiques. How will campus triers of fact determine whether an “explicit yes” was repeatedly rendered, satisfying the “ongoing” consent requirement? Critics point out, not entirely satirically, that students should tape their sexual encounters or obtain a series of signed consent forms as their activities progress.

How far we’ve regressed.  A similar affirmative consent requirement proposed by the late Antioch College in the early 1990s was widely and ruthlessly mocked. Today, that requirement is about to become California law, with the support of the New York Times editorial board, as well as Gloria Steinem. Feminists who have long demanded that government stay out of the bedroom are now inviting it into the dorm room.

Once, government and university officials hunted down suspected communists and communist sympathizers on campus. Today, they’re targeting campus sexual predators — alleged harassers and rapists — with similar disregard for civil liberty. California’s affirmative consent bill facilitates guilty findings by mandating a minimal, “preponderance of evidence” standard of proof, (advocated by the Obama administration) in campus sexual misconduct cases.

Affirmative consent requirements and the conviction bias that shapes new rules governing these cases practically ensure that students accused of sexual assault will be found guilty of it. In part, the drive to deny due process to those accused of assault is an overreaction to instances of denying redress to assault victims. In part it reflects a “progressive” ideological commitment to assuming that a self-identified victim’s recollection of a sexual encounter is absolutely, objectively true.

Advocates of this conviction bias tend to trivialize the consequences of guilty findings in campus cases. Since campuses are not courts of law, students are “merely” suspended or expelled, not convicted of crimes and subject to imprisonment. But they are labeled rapists and likely to be denied admission to other colleges and universities. Their educations and careers are derailed, at best. Innocent students wrongly accused and found guilty of rape may be as traumatized as some rape victims.

Besides, activists who believe that affirmative consent rules and minimal standards of proof are essential to the just disposition of sexual assault claims will probably not content themselves with campus reforms. Steinem and Kimmel, for example, insist that an ongoing “explicit yes” rule is “completely logical, and fully consistent with adjudicating other crimes.” Why, then, should it only apply to colleges and universities? And if we’re supposed to “believe the victim” on campus, why not believe her off campus, as well? Civil libertarians should take note: Assaults on the fundamental presumption of innocence and due process in rape cases that begin on campus are unlikely to end there.


  • Wendy Kaminer

    Wendy Kaminer is a lawyer, civil libertarian and author of several books, including Worst Instincts: Cowardice, Conformity and the ACLU.

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