Mimesis Law
4 June 2020

The “Affirmative Consent” Train Slows Down for Now

May 20, 2016 (Mimesis Law) – You’ve probably noticed that there is a movement afoot to change the definition of consent in sexual assault cases:

Imagine the following case: Two recent college grads meet in a bar, talk, begin kissing, and go to her apartment. After a little more talking, they resume kissing there. He undresses her and initiates sexual intercourse. She neither objects nor resists. He leaves, and they have no further contact. A month later, she files a criminal complaint with police, complaining that this was rape because she never expressed verbal consent and was physically passive.

One apparently mutually fun evening, followed by prison and lifetime of sexual predator registration for the “offender.” Who would want to make this the law:

Schulhofer and “associate reporter” Erin Murphy explained in an “introductory note” to an earlier draft that they wanted to criminalize “commonplace or seemingly innocuous” behavior in order to change “existing social expectations” and reshape social norms.

This reflects their view that many millions of women are routinely pressured to have sex in ways that are not now—but in their view should be—illegal. The current Schulhofer draft would also impose unprecedented limits on defendants’ ability to introduce evidence suggesting innocence. The May 17 ALI votes will be on two key sections of the massive “Tentative Draft No. 2”: the definitions of “consent” and of “Sexual Penetration Without Consent,” a felony punishable by up to five years in prison.

Thank heavens there are people standing against “commonplace or seemingly innocuous” sexual behavior. We are a danger to ourselves and didn’t even know it. The commonplace and innocuous banana probably has it out for us too.

Those leading the charge against the dangers of mundane life see rape lurking behind most sex. Fault Lines Managing Editor Scott Greenfield added his thoughts here:

For those of us not indoctrinated into the new conceptions of rape and sexual assault, we envision forcible rape, a man with a gun to the head of a woman, pushing her into a dark alley where he forces himself onto her.  At best, we imagine a woman passed out, unaware that the man she was drinking with earlier removed her clothing and forced himself on her.

But to others, force is only the extreme.  Rape is now the word used to describe sex when a woman has had a few drinks, falls somewhere along the buzzed spectrum and decides the next day that she didn’t really want to do it, even though she was an enthusiastic participant the night before.

Or rape is the word used to describe the woman who is persuaded by a man to engage in sex, or the woman who agrees to sex, not because she wants it but because she secretly feels she has no choice.  And then there is sexual assault where no touching occurs at all, from “stare rape” to the undesired “hey baby” on the street.

Changing the meaning of a rather well-understood word will not lead to more clarity. In fact, disguising the facts with ill-fitting words leads to more confusion. Many people from George Orwell to George Carlin have recognized that controlling language leads to controlling thoughts. If you can change the definition of rape, then you can change the thinking about rape.

Scott adds more here:

The draft also acknowledges that it is not reflecting any existing social norm or consensus about behavior that should be deemed so extreme as to warrant criminal sanction. Instead, it clearly states that its intention is to coerce conformity to its own choice of new norms for behavior:

What’s clear is that ALI has been captured by the prevailing academic ideology, and they mean to change the model criminal laws to ram feminist dogma down society’s throat through the use of criminal law.

By changing language, activists hope to control behavior, or at least punish the newly deserving:

For starters, the draft has rebranded the “affirmative consent” standard previously criticized as “communicated willingness.” Whatever you want to call it, it requires each person involved in sexual activity to essentially treat sex like a question-and-answer session, with each party asking question after question and receiving a clear reply before escalating the activity. This is not how sex works, and the signers of the opposition letter write that such language creates a starting presumption that sex is a crime.

“The prosecutor need only say, ‘Ladies and Gentlemen of the Jury, under the State’s definition, it does not matter whether the complainant actually was willing,” they wrote. “It is undisputed that the sex act occurred and there is no evidence in the record that the complainant communicated willingness. There is no consent if the complainant has not communicated willingness. You must convict if you find that the defendant recklessly disregarded that absence of consent.”

Such a definition would shift the burden of proof onto the accused, something not currently permitted in the U.S. criminal justice system. The accused would have to prove that they received “communicated willingness.” This would mean that any time someone engages in sexual activity, they not only have to make sure they obtain this specific form of consent, but also proof of this consent. And outside a videotape, there’s really no way to get proof.

That sounds innocent enough. If you asked 1,000 random people if they thought before sex the couple should have communicated willingness beforehand, it would probably be difficult to find disagreement. After all, as Scott pointed out, we think of sex as generally both consensual and willing. And rape is the opposite of that.

Re-branding affirmative consent is an attempt to confuse the real issue with pleasant language. Rape becomes the default sexual encounter, unless proven otherwise. So, whether you call it communicated willingness or affirmative consent, the result is to criminalize nearly all sex.

A normal person may wonder why the purpose of the shell game with language? Those so-called advocates know that when you change words you can influence thoughts:

Another attorney suggested people were only confused by the definition because of “hundreds of years” of “abuse of women.” She also used an incredibly simplistic analogy of sex, by comparing it to inviting someone in to one’s home. A person must be invited into one’s home before entering, and the same should go for sex, she said.

Except sex isn’t that simple. People don’t ask: “May I have sex with you?” and they don’t typically say “come have sex with me.” There is so much more than that. Comparing sex to theft or tea or entering someone’s home ignores the nuances and passions involved in the act.

There you have it; rape is like a tea party—or something. And the current human race populates this planet through rape, because, well, there was no affirmative consent. Bad analogies lead to poor critical thinking.

It would all be laughable, like the Carlin comedy bit, if it weren’t for the fact that real people will go to real prison. Comedy becomes tragedy. And even those that do not go to prison might be arrested, drummed out of school, or have their personal and professional lives ruined. Certainly, victims of rape deserve justice, as do the offenders. According to these advocates, what we currently conceive of as consensual sex is such a great social ill that we should essentially wipe away any intent requirement and shift the burden of proof to the defendant.

According to the proponents of affirmative consent, it is all worth it so men feel a cold spike of fear before sex. So, this proposal is not to punish offenders or deter future conduct. It’s purely to advance a socio-political agenda.

And these activists are perfectly willing to co-opt the police, prosecutors, and courts to further their agenda. On the other hand, these activists not only have no skin in the game, but they will not have to see the tragedy left in their wake. Prosecutors, defense attorneys, family, friends, and perhaps the penal system will be the ones to clean up the mess created by not-so-well-meaning activists.

Perhaps the activists have already thought about this problem, thus they recommend of kangaroo courts to decide these types of matters. Why settle for a cold spike of fear; how about summary execution for sex without affirmative consent? Let’s just dispense with investigations, evidence, and trials, effortlessly going from changing words to punishment. Fortunately, the American Law Institute is not willing to jump aboard that crazy train. Yet.

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  • Michael S Goodman
    21 May 2016 at 7:57 am - Reply

    The real problem comes from university disciplinary authorities who are under no compulsion to assure that American principles of jurisprudence are followed by their “kangaroo” panels.

    Expulsion is frequently the sanction conferred by these mock “hearings” upon student “sexual miscreants”. This penalty, although nor criminal in nature, can adversely impact a future educational and/or vocational career.