Connor Kianpøur, Georgia State University
Consent plays a crucial role in mediating otherwise problematic relationships. It requires that individuals receive permission from and develop respect for others. What makes stealing wrong, both from an ethical and legal perspective, is that an individual fails to get consent for the use of someone else’s property. What makes sexual assault and rape wrong, also, is the fact that these acts involve forgoing consent to engage intimately with another.
On college campuses around the nation, students are being taught to internalize standards for sexual consent that require it to be affirmative, unambiguous, and conscious. Certainly, this is a noble standard for which to strive. It should be the case that every sexual encounter one has involves undisputed enthusiasm, reciprocity, and respect. The question for activists who wish to legislate this attitude about sex, though, then becomes: How can we ensure that all sex acts involve consent that is affirmative and unambiguous given the nature of sexual relationships?
Some suggest that affirmative consent laws are the way to go. Such proposals, however, are not unproblematic. Camille Paglia, renown feminist academic and cultural critic, has expressed her reservations with affirmative consent laws ad nauseam:
“As I have repeatedly argued throughout my career, sex is a physical interaction, animated by primitive energies and instincts that cannot be reduced to verbal formulas. Neither party in any sexual encounter is totally operating in the rational realm, which is why the Greek god Dionysus was the patron of ecstasy, a hallucinatory state of pleasure-pain. ‘Yes means Yes’ laws are drearily puritanical and literalistic as well as hopelessly totalitarian.”
Sexual relations are inherently ambiguous, motivated by so-called “primitive energies” and drives that make affirmative, unambiguous consent almost impossible to verifiably document. Seldom does somebody have a sex contract on hand to get their partner to sign and initial on the dotted line in the heat of the moment. You may be wondering: Why would anybody need to document rendered consent to sexual acts? Isn’t it enough to know that the sex acts involved consent that was affirmative, unambiguous, and conscious?
Documentation of rendered consent may be required soon because activists are trying to alter the burden of proof requirements in criminal cases dealing with sexual assault and rape. That is, rather than requiring that a victim of sexual assault prove that consent was not rendered in a given instance, the accused would be required to prove that it was. Just a month ago, the American Bar Association (ABA) deliberated over whether this standard should be adopted by our criminal justice system. Fortunately, the ABA decided in a vote of 256-165 to table the resolution which illiberally presumes the guilt of the accused. Unfortunately, this conversation is not over. The ABA will likely revisit arguments for enactment of the resolution next year.
The world we would live in if the ABA were to adopt this reprehensible standard would be one in which all of the interests which advocates of affirmative consent endeavor to protect are undermined. As I said before, it is not unreasonable to want peoples’ sexual encounters to be undisputedly enthusiastic, reciprocal, and respectful. But I find it hard to believe that people would be able to have such encounters when the stakes for being unable to prove the existence of consent in an intimate moment are so high. I would venture to guess that sexual engagement under such circumstances would be riddled with hesitancy, paranoia, and the death of spontaneity.
Furthermore, this standard would require our legal system to presume that all sex acts are hostile. At best, this is incredibly odd. For a generation that is exceedingly concerned with sex positivity, this presupposition makes little sense. At worst, this standard is perverse. The criminal justice system would be in a position of power to socially engineer attitudes about sex. In a world where initiators of sex are presumed rapists, people would fear engaging in and seeking sex. The conclusions that people would draw with respect to arguably the most intimate aspect of their lives would be imposed rather than shaped autonomously by interests, experiences, and values.
This is not to discount the egregiousness of rape and sexual assault. Surely, the experiences of these victims are far more traumatic than would be the experiences of those adversely affected by the adoption of an affirmative consent standard. But I think it is important to emphasize that the position I defend––not the position advanced by affirmative consent advocates––properly classifies rape as an intensely evil crime. Treating every sex act as probably unconsensual detracts from the uniquely horrific character of genuinely unconsensual sex. The word “rape” carries its connotation and the crime its sentence because it is shameful and has no place in civilized society. If affirmative consent proponents and opponents alike can agree that rape and sexual assault have no place in this world, why do proponents want its ubiquity to be the default presumption that underlies our justice system?
While affirmative consent is something that we should aspire for as a society, it would be a grievous mistake to upend due process and the presumption of innocence to achieve this end. If the ABA hears arguments for the resolution again in 2020, the best they could do for the American people is to definitively put this issue to rest and rule against it. Judicial implementation of the affirmative consent standard would be nothing but negative.