Mutual Consent

06.23.14

Does California’s College Rape Bill Go Too Far In Regulating Sex?

With California’s new proposal to regulate the physical intimacy between adults, are we in danger of legislating all the joy out of sex?

A bill making its way through the California Assembly is attempting to address the problem of rape on college campuses by mandating “affirmative consent”—a verbal or written yes—before engaging in sexual activity.

California’s not the only one in the midst of moral panic. Here in the UK we’ve seen a bloodbath of historic sexual abuse claims, and endless media coverage of the allegations and trials. The most prolific paedophile was the TV presenter and philanthropist, the late Jimmy Savile, whose charity work in children’s hospitals and care homes gave him unprecedented access to vulnerable youngsters. The convictions of these perpetrators—all male, and almost all elderly—is a reminder that behaviour which was permitted, or at least not talked about, in the 1960s, ’70s and ’80s is no longer acceptable. Obviously this is a good thing.

But are we going too far? Clearly there’s no justification for sexual contact of any kind between an adult male (or female) and an underage child. But what about consenting adults: Where’s the line between normal human flirtation, making a move, and sexual impropriety?

Californian bill SB 967, which has already passed the state senate, proposes that all sexual behavior on state-run college campuses will require “an affirmative unambiguous and conscious decision by each participant to engage in mutually agreed upon sexual activity. … Lack of protest or resistance does not mean consent, nor does silence mean consent.”

SB 967 is designed to make it clear that only “yes” means “yes.” The person who is initiating sexual behavior must receive a verbal yes from the other person before continuing, and this consent must be ongoing through the sexual encounter.

But how will this work in practice? How can verbal consent be legally proven: might this require an independent witness, even a formal contract? Is verbal consent valid if either party is intoxicated? The bill makes clear that consent for kissing does not count as consent for oral sex—well, yes, obviously—but must participants stop in the heat of passion and check before each new “move”? And how long would this process of mutual agreement continue within a relationship?

Critics have highlighted many flaws in bill 967: that putting the onus on individuals to get positive consent for every act of intimacy is both improbable and dangerous to students’ rights; that strictly applying such a standard would make most ordinary couples potentially liable for sex offenses; and that resolving whether “affirmative consent” was not only present but “continuous” throughout an act will be nearly impossible.

But what about consenting adults: Where’s the line between normal human flirtation, making a move, and sexual impropriety?

Let’s be absolutely clear: Rape or any other sexual assault is totally inexcusable, and deeply traumatic for the victim. Bill 967 promises to make the reporting and conviction process more victim-centred, “so that victims are not re-victimized again”; to make it harder for perpetrators to brush assaults off as alcohol-fueled encounters; and protect the confidentiality of victims.

But what about regular physical intimacy between regular (non-criminal) students? Are we in danger, in the rush to legislate, of ruining the moment? When I was a teenager, the stages of physical intimacy were called bases: so you might go to first base, second base, third base, or “all the way.” (I don’t remember any young men checking in between bases…)

Comedians love to satirise this kind of law: “May I touch your left breast?’ “You may touch my left breast’; “May I touch your right breast?’ etc. Comedy aside, the conviction rate for rape and other sexual crimes is scandalously low, and this bill seems unlikely to right that wrong. The tragic fact is that rape can and does happen within marriages: once again, SB 967 does nothing to address that.

The growing “zero tolerance” attitude to sexual, domestic and child abuse is undoubtedly positive, but let’s not spread the seeds of suspicion throughout all sexual encounters. The vast majority of adults know right from wrong, understand that no means no, and are able to read the signs when it comes to making advances towards a potential new partner.

All the men I asked agreed that it’s clear when it’s OK to kiss someone. My best (male) friend said: “I’ve never asked a woman outright if I can kiss her. I tend to go with my instincts: if it feels right, it probably is right. My main concern is: Is she interested—is she happy with whatever’s going on?”

As he says, most men are not predatory sex pests, trying to force themselves on women, get a hand up her skirt, or cop a feel. California’s plans to make sexual activity “unambiguous” are impractical and unenforceable: Mutual attraction, unlike a house purchase or a business arrangement, is never guaranteed.

Forget affirmative consent, here’s a simple solution: don’t lunge. If you’re in a situation where the vibe seems right, take it slow. Make your move slowly (very, very slowly if you’re unsure) so that the other person has time to turn their head away. And if you get a “uh, no thanks”? Well, that’s where good manners come in. If it’s not mutual, it’s not on. Step away politely, apologise profusely, and find a taxi, pronto.

Emma Woolf is the author of An Apple a Day and The Ministry of Thin. Follow her on Twitter @EJWoolf