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Even Affirmative Consent Advocates Seem Confused About Affirmative Consent

FIRE and      the vague requirements of California鈥檚 new law requiring the state鈥檚 university and college students to obtain verifiable, ongoing 鈥渁ffirmative consent鈥 for sexual activity. Among other problems, supporters have not clearly explained just how often one must explicitly ask for permission in order for consent to be considered 鈥渙ngoing.鈥

On a on the issue earlier this week (and featuring my colleague Joe Cohn), host Tom Fudge asked victims鈥 attorney Jessica Pride whether the bill 鈥渕ean[s] that a person has to ask not one, but many questions? Now may I touch your breasts, now may I take off your clothes 鈥 .鈥 In response, Pride called that interpretation 鈥渟illy.鈥

It鈥檚 evident that not all advocates for the law agree, though. , which describes itself as a 鈥渘ew and rapidly growing community of women and men across the U.S. mobilized to fight sexism and expand women鈥檚 rights,鈥 recently released a video called 鈥溾 that they say 鈥 how [affirmative consent] works.鈥 It features two couples鈥攁 pizza delivery guy and a female student, and two men in a laundromat. In the first vignette, Pizza Guy indeed stops mid-kiss to ask the female student if it鈥檚 okay for him to touch her clothed hip. This would appear to conflict with Pride鈥檚 interpretation of the law as not requiring such questions.

In the second vignette, after one laundromat fellow (let鈥檚 call him 鈥淪erious鈥) asks the other (let鈥檚 call him 鈥淪miley鈥) if he can kiss him, both lean in and open their mouths at the same time. Then Smiley stops and playfully mocks Serious, implying that he didn鈥檛 say 鈥測es鈥 yet. And indeed, he didn鈥檛 verbally say yes, but one could reasonably determine that he had expressed yes by leaning in with his mouth open and his head tilted. (He does verbally say yes a few seconds later.) Viewed in the context of the repeated reassurances offered by affirmative consent advocates that spoken consent is unnecessary鈥攖he bill was even a statement that nonverbal cues might not be adequate鈥攖he law鈥檚 application to this interaction is uncertain. Was Serious about to commit sexual assault? It鈥檚 not at all clear.

Another interaction depicted in the video is similarly confusing. After Pizza Guy expresses regret at apparently having brought the pizza to the wrong room, Student is so overcome with emotion at his consideration that she grabs him by the shoulders and kisses him. Only then does she ask, 鈥淚s this okay?鈥 But under California鈥檚 new law, she鈥檚 already committed sexual assault. She is unambiguously the initiator of this contact. She did not obtain consent before kissing him. He didn鈥檛 have time to resist or to protest, but of course, even if he did, the law states unequivocally that 鈥淸l]ack of protest or resistance does not mean consent.鈥

By the same standard, Smiley assaults Serious in the video, too. They consent to kissing, but after a few seconds Smiley removes Serious鈥檚 shirt and pushes him back against the dryers, touching his head, neck, and chest. He didn鈥檛 ask permission to do any of those things. Consenting to kissing does not mean that you have consented to being disrobed by your partner; per the law, consent has to be ongoing.

If supporters of the affirmative consent standard can鈥檛 agree about what鈥檚 required under the law, and the purported 鈥減erfect鈥 illustration of consent in fact depicts what is plainly not consent under the law, how can supporters still argue that the affirmative consent standard will be easily understood by students and fairly administered by universities?

As Jonathan Chait in New York Magazine, some supporters of California鈥檚 new law don鈥檛 seem to be concerned about the law鈥檚 impracticability:

Indeed, the law鈥檚 advocates don鈥檛 uniformly believe its written standards will actually be followed at all. This defense by is telling: 鈥淭he law has no bearing on the vast majority of sexual encounters. It only applies when a student files a sexual assault complaint.鈥 So the law will not come into play because nobody will actually try to enforce it. Instead, it will technically deem a large proportion of sexual encounters to be rape, but prosecutors will only enforce it if there is an accusation. And since most, and possibly nearly all, sexual encounters will legally be rape, then accusation will almost automatically result in conviction.

Indeed, this may be the point. [Tara] Culp-Ressler dismisses concerns about convictions of innocent people. (鈥淚n reality, false rape allegations are very rare, comprising about .鈥) Two to 8 percent seems like a fairly high number of innocent people to convict as rapists, and of course that proportion could well rise quite a bit under a legal regime that expands the definition of rape in ways that are both extremely broad and extremely confusing.

Extremely broad and confusing indeed.

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