No Sex Please: We’re Californian

By Robin Koerner
Our America Initiative Advisory Council Member for Liberty Coalition Partners

Rape may represent the greatest possible violation against a human being except, perhaps, for murder.

Any decent person sympathizes with the intent of those who would seek to prevent it by any reasonable means.  Moreover, there are plenty of statistics regarding the prevalence of rape in our society – mostly, but not exclusively against women – that indicate a moral and cultural epidemic that must be addressed. I, like far too many people, am close to more than one victim of this evil and so nothing I write here is written lightly.

But I am genuinely concerned about what has recently occurred in California with a view to tackling the crime of rape on college campuses. As is so often the case when the details of behavior are legislated in reaction to the actions of the worst people among us, the results are likely to be much less noble than the intention, because the legislation eliminates the most general rights that should be enjoyed by everyone at all times, to protect a few people some of the time.
Late last week, the first state bill to require colleges to adopt an “affirmative consent” model in their sexual assault policies passed the California senate unanimously.


This bill seeks to change the perfectly moral and behaviorally natural “no means no” standard of consent to sexual activity into “everything except an explicitly verbalized “yes” (along with the acquisition of positive evidence of the same that can be later presented just in case you are ever accused of anything untoward), means “no”.


Let us be absolutely clear what such a rule does and does not do. It does not require that sex always be consensual. That is already the law and the policy of any sane institution. Rather, this bill seeks to make most heretofore consensual sexual activity between adults punishable by requiring a specific form of consent – explicit agreement to a specific request.


Most consensual sexual activity between normal people does not involve the kind of explicit, subsequently provable statement of consent, that this bill demands. Sex usually happens between people who trust each other and - precisely because they know each other well enough to engage in sexual activity – wouldn’t wish to receive or provide such encounter-specific and explicit consent to continue with what to both parties is natural behavior – behavior which, some would say, is often most fulfilling when engaged in with just that trust, naturalness and spontaneity.


The Californian bill would make the majority of such normal encounters punishable. Avoidance of punishment would require either a) refraining from normal (consensual) sexual activity or b) engaging in positive behavior that is mandated by the rule. Both are affronts to basic human rights.


Moreover, the California bill states that past sexual encounters or a romantic relationship do(es) not imply consent. It also specifies that “lack of protest or resistance does not mean consent, nor does silence mean consent”.


Seriously? It is of course true that "a current relationship or prior sex doesn't imply consent” per se, but "a current relationship or prior sex" most certainly does bear on what does imply consent. Consider an ongoing sexual relationship. Does explicit consent have to be given for the 200th sexual encounter between the couple? And if so, how should it be recorded? That there is clear implied ongoing consent of a kind that stands behind most sexual encounters among human beings is not a prescriptive statement or a normative one: it’s just a recognition of reality. California is thus making normal sexual encounters – of which the sexual act is the culmination - punishable.


Of course, relationships can end and the contextual element of consent can thereby be changed. But consider a relationship that ends acrimoniously. By California’s new bill, since the man cannot provide proof of explicit consent for that last sexual encounter, he has, a priori committed an offense if the woman seeks to declare that an offense was committed. He is, in other words, guilty until he can prove himself innocent. “Slippery slope” does not even come close.


Were this rule to be generalized beyond California’s educational institutions, then most men who’ve ever engaged in sex would be deemed guilty of having engaged in non-consensual sex. Of course that is absurd: all they would really have been guilty of is failing to engage in a mandated form of speech.


For what it’s worth (and it is worth a great deal), the mandating of speech or behavior is against all premises of common law and the healthiest norms of a genuinely free society. And it may even be against the first amendment: even if California’s bill doesn’t force specific words to be said before sex, it nevertheless does force certain behaviors or speech that is designed to elicit a certain response.


Defenders of such a rule might argue only that nothing is mandated because no one is forced to have sex. That would, of course, be to miss the point entirely, but let’s address it for completeness: if someone is willing to have consensual sex with me, then we have a natural right as human beings to engage in that activity, regardless of how we have expressed our willingness to do so. No public institution can impinge on that – or any other – natural right.
Let us generalize away from sex to focus on the principles at stake here.


If you were to say to me that I may not perform any other activity unless I communicate something to someone in a certain way, then you would not be protecting anyone from the outcome of that activity: you would be merely removing my freedom to engage in it with the positive purpose of controlling my communication. You would be preventing me from exercising a natural right, from being a normal human being, going about my business without harming others. This is exactly what happens in prison: which operates by firstly removing a natural freedom (to move freely, for example), and then requiring the incarcerated person to earn that right back in limited fashion as a privilege by performing positive, specified activities. I truly don’t wish to be over-dramatic or reactionary, and obviously the degree of infringement of freedom caused by California’s bill is not quantitatively comparable to that caused by imprisonment, but the principle must be starkly seen.


And what do we get for this basic violation of natural rights? Will California’s bill prevent campus rape? Under the bill, any dispute will still come down to she-said, he-said. Whereas a real rapist would in the past have tried to lie his way out by claiming “she consented to sex”, he will now lie his way out by saying, “she affirmatively consented to sex”.
So in the best case, California’s rule does nothing; in the worst, it punishes decent, sexually active adults and compromises natural rights.


Either way, it is dangerous. The passing of such a law gives lazy politicians and institutional officers the sense that a very real and serious problem has been taken care of when it has not at all. By defining consent so narrowly, non-consent is defined so broadly that its true instances cannot be identified. The genuine moral responsibility of educational institutions to identify actual sexual predators – and to engage in the self-examination necessary to identity the cultural causes of the presumed heightened prevalence of rape at the institution – is entirely abdicated.


Of secondary import is the negative contribution of such a bill to an even broader, if less dangerous, problem: men’s generational inability to understand women, with all those mysterious-to-men female modes of communication, all the ways they communicate their desires, all the ways they like to be made to feel like women, and the way in which everything on that list is mediated by context.


To summarize in British vernacular, “don’t bother with any of that, mate. Just get her to sign here”. That’s where we are going. A law that forces free people, harming no one, to do things they choose not to do can only be consistently enforced with repeated refinements to specify, in ever-increasing detail, the mandated action whenever a case is brought. Such law-making turns the real meaning of rights on its head. Just as all human beings have the (negative) right to the integrity of their bodies, they have the same (negative) right not to be forced to do things they do not want to do when they are harming no one.


I don’t claim to have all the answers, obviously - so I am really seeking to contribute to a debate that I believe must be had. But for sure, college students are legally responsible adults at institutions that are designed to teach them how to think for themselves, and become responsible decision-makers. So as an initial suggestion, why not tackle this devastating moral and cultural problem by educating them about the issue, and requiring them to rise to both the challenge and the responsibility of negotiating, setting and implementing their own policies to deal with it in their community?


Cultures, after all, are the sum total of the attitudes and expectations of the people in them. Therefore, requiring individuals to consider the issue of sexual consent with the other members of their community may be the only way to get to the real roots of the problem – to treat its causes, and not just its terrible symptoms. Education before the crime - rather than punishment after the non-crime - would seek to help men and women understand and genuinely respect each other’s modes of communication and expectations in social contexts.


Without such an approach, we are surely just diminishing our moral sensitivity and giving up personal responsibility – in the name, ironically, of moral sensitivity and personal responsibility.


And meanwhile, the Californian government will be not only in your bedroom, but also in the conversation you have on the way there.

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