The Biggest Problem with 'Affirmative Consent' Laws No One's Really Talking About

Prof. August approves of California's dumb new sex laws
October 14, 2014

So, California passed a dumb law that requires college students to obtain "affirmative consent" during intimate relations. Want to kiss? BETTER ASK. Want to screw? BETTER ASK IN TRIPLICATE. Etc.

The whole thing calls to mind one of a Simpsons episodes. In it, Homer and Marge break up (in flashback) because Marge is entranced by a rather awful PC college professor, who woos her thusly:

Professor August: If I were to approach you for a kiss, would you construe that as harassment or give your willing consent?

Marge: Consent, of course.

Professor August: Ah. Continuing in that line of thought, may I kiss your mouth with my mouth?

Marge: Just do it already!

Life aspires to parody, as always.

There has been a great deal of writing on this stupid and dreadful and (as we'll see momentarily) pointless bill. Reason's Shikha Dalmia noted that the law is, on its face, absurd and based on a horribly flawed premise (that sexual assault occurs because some dude is confused about whether some chick wants to have sex). For pointing out this eminently reasonable fact, Dalmia was sex-shamed by Erin Gloria Ryan and the lovely ladies at Jezebel. Ezra Klein noted that the law was dumb and terrible but threw up a ¯\_(ツ)_/¯ because of faulty stats that drastically overstate the number of sexual assaults on campus.* Freddie deBoer ripped Klein's insouciance and noted that such a "terrible law" would likely disproportionately hurt minorities, while Robby Soave noted that stripping due process rights from those accused of rape will do little to stop rapes.

The best work yet done on this whole kerfuffle might be Heather MacDonald's provocative and hilarious essay. In it, she (more or less) argues that conservatives should welcome this unexpected alliance with a neo-Victorian set of feminist harpies who are (accidentally but effectively!) turning back the clock on the sexual revolution. The irony of the whole situation is delicious, at least.

I believe that catches us up. But there's one big factor that no one's really talking about.** And that's that this law changes precisely nothing. Absent obvious physical trauma or the presence of drugs in the system of a victim, sexual assault is a he said, she said situation. You're just changing the subject of the "said." "Did you ask for affirmative consent?" "Yes. Yes I did." "Did he ask for affirmative consent?" "No. No he did not."

And we're back to square one.

But hey, something must be done! So it might as well be something aggressively stupid, you know?

*So wonky!

**Or, at least, one big factor I haven't seen anyone really talking about. There have been a lot of hot #takes on this issue. And I've been in Vegas for four days, so much has flown under my radar. Feel free to correct me on Twitter. I'm sure you will anyway. You don't need my consent to harass me there.