The risks of ‘affirmative consent’

While we are preoccupied with the tacky reality show of Election 2016, there are other things happening away from the spotlight that could have a profound and troubling effect on our lives. Thus, unknown to everyone but a handful of jurists and journalists, a meeting held in Washington, D.C., earlier this week considered a measure that could have turned nearly every sexually active person — especially if male — into a sex offender awaiting detection.

For now, the proposal has been rejected. But the idea behind it — so-called “affirmative consent” — will almost certainly be back and is making inroads elsewhere in public policy.

The American Law Institute, an elite group that includes the nation’s federal and state appellate judges, considered an amendment to the federal Model Penal Code requiring an affirmative consent standard for sexual assault, drafted by New York University law professors Stephen J. Schulhofer and Erin Murphy and first submitted last year. While the Model Penal Code (developed in 1962 to help standardize criminal law nationwide) has no legal power, it serves as the basis for legal statutes in most states, including New York.

The amendment defined sexual consent as “communicated willingness” to engage in a specific act. Mere lack of physical or even verbal resistance would not suffice. Perhaps most insidiously, such norms would apply not only to sexual acts but also to any physical contact with a sexual intent — including, critics argued, taking a person’s hand on a date.

As legal scholars such as the Brookings Institution’s Stuart Taylor Jr. have pointed out, this is at odds with how men and women have sex in the real world. Most people don’t discuss their sexual intentions at every step, instead relying on physical overtures and nonverbal responses. There are many reasons for this, including shyness and preference for spontaneous give and take.

In an interview with Washington Examiner reporter Ashe Schow last year, Schulhofer argued that reform is necessary because, under current law, a woman is not protected if a man penetrates her with a finger while she is passed out after drinking. But this is not true: In an Ohio case that drew national attention in 2013, two teenagers were convicted of rape under precisely these circumstances. What’s more, such extreme examples are being used to criminalize far more routine encounters in which women (or, presumably, men) go along with unwanted sex, or in which judgment is impaired by alcohol.

Ultimately, this legal overreach is not only patronizing but also pointless. If you lack the assertiveness to say no to unwanted physical advances, you might say yes to a verbal request when you’d rather say no. Meanwhile, affirmative consent not only establishes an unrealistic standard for sexual behavior, but also skews the law toward a presumption of guilt: Schulhofer and Murphy state that the “default position” should be to err on the side of protecting individuals from sexual coercion. However well-intentioned, this is an open invitation for any regretted sexual encounter to be reinterpreted as assault.

The affirmative consent amendment came under criticism before the meeting and was overwhelmingly voted down. But other proposals, including one that would require a defendant in a sexual assault case to prove he “reasonably believed that the complainant would welcome the act,” will come up at future meetings. With more states making affirmative consent the standard for judging complaints of sexual misconduct on college campuses, the legal culture may be shifting in the direction of such ideas. While there’s still time, we should stop and ask just how much government we really want in the bedroom.

Cathy Young is a regular contributor to Reason magazine and Real Clear Politics.