A proposed California law that would require colleges to set “affirmative consent” standards — to avoid dealing with "she never said no" in sexual-assault allegations — has prompted an all-too-familiar cycle of backlash and mockery. First came the persecuted outrage. Washington Post blogger and George Mason law professor David Bernstein wrote that the law was better, at least, than the Department of Justice standard of "explicit consent." That would make "leaning over to give your date (or your spouse) a kiss without asking first and receiving a yes comes within stated definition of sexual assault, regardless of how many times you’ve done it before without objection.*” (It wouldn't under the California law.) Then came the jokes. Bernstein updated his post to share a “very funny” video imagining the grim, consent-obsessed future of campus sex.
“Before we go any further,” the guy says, “I should probably grab something.” Instead of a condom, he pulls out a lengthy “sexual consent form.” “Do you mind if I have my lawyer review this?” the girl responds.
Those who follow sexual-assault reform were well acquainted with Bernstein's response, and not just because of the Post's growing canon of reactionary rape writing. The jokes were stale, too — both played out during campus culture wars more than 20 years ago. In 1991, Antioch College adopted a set of consent guidelines that went even further than the California state legislature, provoking similar backlash. Written by the self-described "Womyn of Antioch," the rules embodied the stereotype of the humorless feminist:
The person(s) who initiate(s) the sexual activity is responsible for asking for consent.
The person(s) who are asked are responsible for verbally responding.
Each new level of sexual activity requires consent.
After gaining national media attention, Antioch’s consent rules were mocked in a 1993 Saturday Night Live sketch. In a game show called “Is It Date Rape?” a boneheaded frat boy failed to realize that anything he does to a woman — even helping a classmate move her futon — is date rape. Meanwhile, the geeky Antioch “Date Rape Players” practice the robotic sexuality seemingly advocated by the Womyn of Antioch. “May I elevate the level of sexual intimacy by feeling your buttocks?” Mike Myers asked.
Neither Antioch’s rules nor more recent campus sexual-assault reform has created the bemoaned class of well-intentioned Casanovas wrongly convicted of rape. (Campus courts don’t prosecute felonies; they only enforce Title IX’s demand that women’s education not be impeded by the threat of sexual violence and, in the process, ask some people to leave campus.) As far as I know, they haven’t turned sex into a legal mediation session, either.
The proposed California law isn’t the only response seeking to empower women’s role in consent. Before there was “affirmative consent,” there was “enthusiastic consent” — the idea that women could combat rape by changing the standard for consent from “she never said no” to an early and eager “yes.” As Jaclyn Friedman and Jessica Valenti wrote in their 2008 essay collection, Yes Means Yes, the “no means no” model “stops short of truly envisioning how suppressing female sexual agency is a key element of rape culture, and therefore how fostering genuine female sexual autonomy is necessary in fighting back against it." But the notion of enthusiastic consent failed to produce a generation of regret-free female sexual operators.
On the contrary, women's sexual complaints have only grown more nuanced and harder to litigate. Twenty years later, sexual offenses that could never realistically be prosecuted as rape — unwanted gropes and coercive hookups — continue to divide campus communities. And rather than illuminate the full gradient of sexual violence, Katie J.M. Baker showed in her report on the progressive Canadian college Quest, the victims of such attacks’ identification as sexual-assault survivors only scares liability-concerned administrators back to a black-and-white legal conception of rape. At the same time, some legal scholars and the American Law Institute are advocating for a grayscale definition of rape off-campus. But according to The New Republic’s Nora Caplan-Bricker, feminist critics worry that these distinctions reflect a regressive impulse to return to the “forcible” rape standard, minimizing the trauma experienced by victims of date rape and other, more complex sexual assaults.
So we're back at the same, decades-old rhetorical impasse. Feminists crave a more inclusive definition of rape, one which their critics say will ruin sex. It’s starting to feel like a bad rerun.
*An earlier version of the post incorrectly stated that Bernstein made this claim of the California law.