Whether you believe the oft-repeated statistic that 1 in 5 women in college is sexually assaulted, or agree that the claim is dubious at best as some analysts have illustrated, there is no doubt that contemporary campus culture contributes mightily to the incidence of unwanted sexual activity between young men and women.
But regulating sex, as California’s recently passed “affirmative consent” law seems to do, does little to address the underlying problems that increase female vulnerability to assault on campus.
What’s more, it simplifies an issue that should be addressed by confronting the culpability of both sexes in their sexual choices and behavior.
The new law requires college students participating in sexual activity of any kind to obtain “affirmative, conscious, and voluntary agreement” and that such consent be “ongoing throughout a sexual activity.”
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Holding a running dialogue during a sexual encounter sounds impractical, but at first glance the law does not appear to be otherwise problematic.
Except that it is and its implications are far-reaching.
First, the California statute follows a “preponderance of evidence” standard, not the “beyond a reasonable doubt” standard required to prove guilt in a criminal case.
That means that university authorities need only be “50.01 percent sure that accusers are telling the truth in order to brand the accused rapists and possibly expel them from school,” Ashe Schow writes in the Washington Examiner.
For the law’s supporters, that’s a positive development. Requiring evidence of consent rather than protest takes the onus off the victim. Saying “no” is no longer necessary but implied in the absence of a person saying “yes.”
That’s a sympathetic argument, since women have too often become victims not only of an assault, but also of a judicial system that makes proving their nonconsent excruciatingly difficult.
Still, it doesn’t comport that codifying a dramatically different definition of rape into law will somehow ensure justice is done.
As New York magazine columnist Jonathan Chait characterizes it, the “massive broadening of the legal definition of rape” is “a new blow in the culture wars” that will have ramifications its authors probably never considered.
That includes making it much easier to charge and convict students based solely on allegation.
This potentially creates new categories of victims, those wrongly accused and convicted, mostly male and likely of a certain demographic — something writer Frederik deBoer worries about.
Universalizing affirmative consent, he argues, will “unleash a lower standard onto police and prosecutors who have already demonstrated themselves to be incapable of avoiding racial or class prejudice.” Further, the inequality endemic to our judicial system will be visited “on people of color and working class students in our universities.”
But the law’s collateral damage doesn’t appear to faze all of its proponents.
“It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair that will convince men that they better Be Pretty Damn Sure” before pursuing a sexual fling, writes Vox’s Ezra Klein.
To Klein, changing the culture of male sexual entitlement by creating “a world where men are afraid” makes the law acceptable if not laudable.
There is no argument that encounters between the sexes on college campuses have historically favored men. But that’s a problem largely exacerbated by today’s culture of sexual permissiveness and fueled by the drunken, treacherous social scene that students embrace and society tacitly encourages.
And when it comes to reforming that dangerous campus culture, affirmative consent laws are not a necessary evil but, as The New York Times’ Ross Douthat writes, “a cop-out, a tourniquet, a cowardly way for a culture to avoid reckoning with the root causes of its social problems.”
Sexual assaults on campus must be addressed, not by draconian legislation, but by changing our concept of sexual ethics and social responsibility. Unfortunately, this law does nothing to address those.