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California Bill Brings Government Into the Bedroom

California Bill Brings Government Into the Bedroom

By Cathy Young - June 9, 2014

With all the other drama in the news, the May 29 vote by the California State Senate to pass a bill that ostensibly targets sexual assault on college campuses has gone largely unnoticed. Yet the bill, SB-967—which now goes to the state assembly—deserves attention as an alarming example of creeping Big Sisterism that seeks to legislate “correct” sex. While its reach affects only college students so far, the precedent is a dangerous and potentially far-reaching one.

The bill, sponsored by state Senator Kevin De Leon (D-Los Angeles) and developed in collaboration with student activists, does nothing less than attempt to mandate the proper way to engage in sexual intimacy, at least if you’re on a college campus. It requires schools that receive any state funds through student aid to use “affirmative consent” as the standard in evaluating sexual assault complaints in the campus disciplinary system. According to the bill:

“Affirmative consent” is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. Consent is informed, freely given, and voluntary. It is the responsibility of the person initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

The idea that “no means no” is not enough and consent requires an explicit “yes” has long been the dogma of feminist anti-rape activists. In the early 1990s, Ohio’s super-progressive Antioch College was widely mocked for its code of student conduct that mandated verbal consent to each new level of intimacy. But despite the ridicule, sexual misconduct policies requiring clear, explicit agreement to specific acts continued to spread to campuses across the country. While many of these codes do not absolutely require verbal consent, they strongly encourage it with warnings that “relying solely upon non-verbal communication” can lead to mistakes and misunderstandings. (The initial draft of the California bill contained such language as well.) With such rules, a college disciplinary panel evaluating a complaint is likely to err on the side of caution and treat only verbal agreement as sufficiently clear consent.

Student activists, aided by the social media, have also been conducting a reeducation campaign advocating for “consensual sex.” One might think consensual sex needs no advocacy; but, of course, this is not consent as traditionally understood. The norm this movement seeks to promote, according to a recent New York Times report, is to "ask first and ask often before engaging in sexual activity." Since the activists realize that this doesn’t sound particularly appealing, they endeavor to "make consent cool" through various gimmicks: a website featuring a fictional line of Victoria's Secret lingerie decorated with slogans like "consent is sexy” and “ask first,” giveaways of real condoms with similar mottoes ("ask before unwrapping"), and even, at Columbia University freshman orientation, candy prizes for “creative ideas” about negotiating consent.

To counter the common view that such negotiations are awkward moment-ruiners, the activists quoted in the Times argue that explicit consent can be “fun” and even ensure better sex through communication. Educational posters on the Columbia campus proclaim that “asking for consent can be as hot, creative, and as sexy as you make it.”

With all these earnest reassurances, one can’t help wondering if the consent evangelists really believe what they preach: the ladies (and their gentlemen allies) do protest too much. Moreover, their protestations are belied by the fact that the preaching is backed by undisguised coercion. In feminist educator Bernice Sandler’s list of "Ten Reasons to Obtain Verbal Consent to Sex," the assertion that “many partners find it sexy to be asked, as sex progresses, if it's okay” is followed by “Because you won't be accused of rape” and “Because you won't go to jail or be expelled.” Fun, fun, fun.

To say that sex without consent is rape is to state the obvious. But in traditional sexual scripts, consent is usually given through nonverbal cues. Of course this doesn’t mean that people never talk during sex; but there’s a big difference between sweet nothings and mandatory negotiations based on constant awareness that you may be raping your partner if you misread those cues. And “constant” is no exaggeration. Thus, the sexual assault policy at California’s Occidental College states that “individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner” and that consent can be withdrawn through an explicit “no” or “an outward demonstration” of hesitation or uncertainty, in which case “sexual activity must cease immediately and all parties must obtain mutually expressed or clearly stated consent before continuing.” Whether anyone could feel “sexy” under such conditions seems dubious at best.

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Cathy Young writes a weekly column for RealClearPolitics and is also a contributing editor at Reason magazine. She blogs at http://cathyyoung.wordpress.com/ and you can follow her on Twitter at @CathyYoung63. She can be reached by email at CathyYoung63@gmail.com.

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