Go Home, Consent, You're Drunk

As calls to
“end” campus rape reach a fever pitch, I want to highlight a
few recent pieces on sexual consent from around the web. California
is currently
considering “affirmative consent”
legislation that would create a separate definition
of rape for college students, one in which the absense of
“affirmative, conscious, and voluntary” (though not
necessarily verbal) agreement to proceed at each step of sexual
activity would be considered assault. 

One of the biggest areas of controversy in
the legislation is a section concerning consent and
intoxication. “In the evaluation of complaints in the disciplinary
process,” the bill states, “it shall not be a valid excuse that the
accused believed that the complainant affirmatively consented…if
the accused knew or reasonably should have known that the
complainant was unable to consent to the sexual activity” because
of incapacitation “due to the influence of drugs, alcohol, or
medication.” Many have pointed out that this standard is awfully
vague, leaving much room for discretion in what constitutes
too incapacitated to consent.

Megan McArdle suggests that this is a feature, not a bug,
for those pushing affirmative-consent policies: 

Prosecutors, and regulators more generally, like vague standards
that are impossible to enforce consistently. It gives them a great
deal of discretion in whom they target and how. It is a threat that
can be wielded to force pleas to lesser crimes or other “voluntary”
actions that obviate the need for a messy trial they might
lose.

If university administrators moved to an affirmative-consent
standard by themselves, parents and alumni, particularly the
parents of sons, might complain. But if lawmakers force them to it
… well, it’s another weapon in the arsenal that allows them to
target men who, say, generate too many plausible but
impossible-to-prove complaints. The part of me that was a
potentially vulnerable college woman understands the desire. But
the part of me that is suspicious of authorities with broad and
vague powers nonetheless thinks we should look for a better
way.

At Bustle, Pamela Stubbart considers a

sexual assault case from Occidental College and articulates
something that’s long bothered me about the affirmative consent
movement:
If drunk people can’t give consent, how can they
perceive consent?

Everyone understands the intuition that a policy (and more
importantly, a real culture) of meaningful consent helps to protect
incapacitated people from non-incapacitated (or less-incapacitated)
potential assailants. But when both parties in a
sexual encounter are (by their own admissions) blackout drunk…it
doesn’t take a trained philosopher to point out the underlying
principle: if fall-down, blackout drunkenness really does
incapacitate someone morally and relieve them of
responsibility for their actions, for consistency’s sake that must
count both for ability to give consent and ability to
perceive it. The burden might be reasonably placed on the
clear initiator to prove that he or she was drunk, but in the
Occidental case, neither Jane nor John Doe denies that both were as
drunk as can be.

Fortunately, rapists do not get themselves blackout drunk and
then go out planning to rape people and “get away with it.” When
both people are that drunk,
and equally drunk, it’s usually the result of a
voluntary (if ill-advised) organic social situation. Here’s
the reality of the matter, which is kind of both good and bad news:
rape is not some kind of mutual poor decision or
drunken accident (which would make it easier to educate or engineer
away). Instead, there really are men who prey on women sexually,
often by getting them drunk.

Affirmative consent legislation suggests that misinterpreation
of consent is a major root of sexual violence. But
most rapes are committed by repeat offenders with calculated
agendas, not students confused about whether the absense of a ‘no’
means ‘yes’.

“Given the horrors of sexual assault, the desire to do something
is powerful and totally understandable,”
writes Freddie de Boer. “But the establishment of explicit
consent policies strikes me as a perfect example of the flawed
thinking of ‘we need to do something, this is something, therefore
we need to do this.'” He, too, sees affirmative consent laws as
promoting misunderstanding about rape: 

Rapists are those who engage in sexual behaviors against others
who have not consented to those behaviors. Whether the standard is
“no means no” or “only yes means yes,” rapists will violate that
standard, because they are rapists. Perhaps such policies will make
it easier to prosecute cases against offenders, but again—it is as
easy for someone to claim after the fact that he asked for and
received a yes as it is to claim after the fact that the other
person didn’t say no. These policies seem only to solve problems
under the assumption that many rapes are so-called “gray rapes,”
and yet anti-rape activists have long worked to insist that there
is no such thing, or that such situations are quite rare.

De Boer also sees hypocrisy in attempting to promote individual
agency and autonomy by requiring that agency be used in a very
particular way:  

One of the most important parts of the feminist project is
insisting that women own their own bodies. This has application to
abortion, where the pro-life movement seeks to take physical
control of women’s bodies away from them. And it has application to
rape. The insistence of those who work against rape is that only
the individual has the right to define appropriate and wanted
sexual practice. With the informed consent of all adult parties, no
sexual practice is illegitimate. Without that consent, no sexual
practice is permissible. This is a humane, moral standard that has
the benefit of simplicity in application and clarity in
responsibility.

But it stems first and foremost from the recognition of
individual ownership. To define the exact methods through which
individuals can request and give consent takes away that control
and turns it over to the state, or even more ludicrously, to a dean
or some academic grievance board. We should be expanding the
individual’s control over their own sexual practice, not lessening
it. And we should maintain the simplest standard that there is:
that if a person rejects a sexual advance, or is in such an
incapacitated state that they cannot rejected that advance, or is
under the power of the other party to the extent that they feel
compelled to consent, sexual contact cannot morally or legally take
place.

Yet mainstream feminists have taken up the cause of affirmative
consent on campus with vigor. It seems to epitomize critics’ charge
that these feminists are only concerned with the problems of the
privileged and middle-class. Only about one-third of Americans ever
earn a college degree. Only about six percent of Americans are
currently
enrolled in college, and far less on traditional college
campuses. Why are the intricacies of consent for this population so
much more important than, say, finding funding to test
the backlog
of rape kits—something that could help catch existing rapists
and protect people regardless of their educational attainment (or
incapacitation) level?