I Supported Affirmative Consent Before It Was Cool (and Then I Gave Up On It)

A couple years ago, I was trying to figure out how best to deal with rape cases.  Rape is simultaneously one of the worst crimes that can be perpetrated against an individual and one of the hardest to punish or prevent.  As I wrote at the time:

Our legal system, like every legal system, struggles with the problem of proving non-consent in rape cases.  A rapist will often admit that sexual activity occurred, but will insist that it was consensual.  The burden of proof falls on the victim.  That is as it must be, since the defendant is innocent until proven guilty, but, under current law, it is very, very difficult to obtain that level of proof.  If it turns into a case of “he-said/she-said”, the rapist gets away with it.  Few rape cases that lead to an arrest end in conviction and prison time.  Partly because of how difficult they are to prosecute, few rape reports lead to an arrest in the first place.  And, given the high costs and low chance of success offered by the justice system, relatively few rapes are reported at all.  RAINN estimates that only 3% of bona fide rapists are sent to prison for their crime.  This is a tragic injustice.

At the same time, I was thinking about premarital and non-marital sex, which are bigger social problems than most people realize.  While fornication used to against the law in all 50 states, those laws are now considered unconstitutional (because — one of this blog’s main themes — Anthony Kennedy is both a moron and a tyrant), and fornication has become socially acceptable:

The results have been predictable: premarital sex is more prevalent than it has been in millennia — perhaps in all history — while solitary motherhood has become both the curse of the poor and the luxury of the very rich.  41% of American children are born out of wedlock, and the number rises to an astounding 73% for black American children.  Social pathology follows, as night follows day.  I will not bother enumerating the harms inflicted on children by mass unmarried parenthood, because I no longer believe this is novel or controversial information, but here are a couple links to recent op-eds and research discussing the threat non-marital parenting poses to the next generation, from larger disciplinary issues to less successful careers.  As it stands, there’s not much we can do about this.  Even if there isn’t a constitutional right to sleep around, do we really have the desire or police resources to do anything about it?

At the time, I failed to note that fornication is also a key driver of the abortion rate (more than half of American reproductive-aged women are married, yet 85% of abortions are performed on the unmarried).  I really want to discourage fornication.

One day, while making dinner and thinking alternately about these things, it occurred to me that rising rape rates are in many ways related to rising fornication rates, because the lack of a wedding vow prior to sexual intercourse makes consent much cloudier, and, in a culture where non-marital sex is widely embraced and even supported, it become much easier for a rape case to degenerate into “he said/she said” reasonable doubt.  So I started to consider them together, and, within a few minutes, I had come up with an amazing idea which (I was pretty sure) nobody had ever heard before:

I have an idea that could make it easier to apprehend rapists without short-circuiting their due process rights, while simultaneously forcing people to think more carefully about fornication, reducing the number of abortions and increasing the rate of births that take place in wedlock — or at least within a truly committed relationship.

I propose that we add the following language to all sexual assault statutes:

“There shall be a rebuttable presumption that sexual contact between the actor and the complainant was non-consensual, if the actor is not married to the complainant.”

Here is what this says, in plain language: if you report to the police that you were raped, and the person you accused says, in defense, that you did have sex, but it was consensual, then it is no longer your responsibility to prove that you were violated against your will.  It is the other person’s responsibility to prove that you did agree to have sex.  The court would not presume that you gave consent, as it does today.  Instead, it would presume that you are telling the truth — that you were raped.  The only cases where the law would continue to presume that the sex was consensual are cases where the accused and the accuser are married to one another.  There is a very good reason to make that exception: a married couple has publicly given sexual consent to one another, and has specifically requested that their sexual relationship be formally recognized under the law.  Although marital rape can and does occur, it is right for a court to give the benefit of the doubt to the marriage.

Much of the rest of my post was dedicated to explaining what a rebuttable presumption was, and defending the fact that rebuttable presumptions (in a sense) invert the “innocent until proven guilty” standard of Anglo-American justice.  (They do this for good reason, and they’re really quite common: example 1, example 2.)

My ultimate vision was that young people, in order to protect themselves from rape allegations under the new law, would start using what I called a “consent contract” before fornicating with anyone.  This would establish consent and be sufficient to rebut the presumption of non-consent.  (A contract would not be the only way to establish consent; they could also film themselves on their phones just before sex, verbally agreeing to it for the record.)

My first hope was that this new law would make it much easier to convict rapists.  Rapists would not have signed a consent contract with their victims, and any cell phone footage would clearly establish rape, so they would have no way of rebutting the presumption of non-consent.  Rape conviction rates would skyrocket — an obvious blow for justice

My second hope was that this new culture would turn fornication into such a social and legal minefield that it would effectively deter it in many cases.  It is not easy to interrupt sex to sign a quick contract, and — don’t forget — you would have to sign one of these every single time you hooked up, even if it was with your steady girlfriend or live-in partner of five years.  And you’d have to keep the records — written contracts and cell phone videos documenting every single sexual act you perform with any other person — for approximately ten years (the statute of limitations on rape in Minnesota is nine years).  Until you married, sex would never be presumptively consensual.  Those who refused to get and keep documentation would find themselves vulnerable to a rape allegation if their relationship ever went south.  If some fornicators ended up unjustly convicted of rape, I wasn’t too concerned about it, since I already wanted them prosecuted and convicted under the old fornication laws.  Affirmative consent would have effectively brought fornication laws back through the back door.  Bwahahahaha!  My evil plan to ruin and criminalize the campus hook-up scene would finally be complete!  No doubt my shadowy overlords at the National Organization for Marriage would reward me richly for my guile!

I had two major problems with my proposal, though, and it languished in drafts and re-drafts for years and years as I tried to fix them.

The first big problem was selling it.  Fornication, as we’ve established, is super-popular, and the Left — which simultaneously opposes marriage and supports people of any sort having sex at any time for any reason with no possible consequences — seemed particularly unlikely to support a proposal whose second prong would turn the hook-up paradise they’ve established on college campuses into a wasteland.  The anti-rape provisions were nice, but would they be enough to make an ally of the cartoonishly villainous Erin Gloria Ryan?  But this is just politics, and, deep down, I think most people know that fornication is bad, so I was confident that, in the long run, this proposal could make it over the finish line if packaged well.

The second big problem was far more fundamental.  In the end, it was fatal.  This legal standard makes it so that the best defense to a rape accusation is not “it was consensual”.  It makes it so the best defense to a rape accusation is a counter-accusation: “I didn’t rape her; she raped me.”  Assuming there’s no documentation — which there wouldn’t be, because it was a rape! — the situation would still be a he-said/she-said, much like it is today… with the important difference that the loser of the he-said/she-said would end up in prison for 25 to life.  Think of how hard it is to come forward with a rape allegation today, and then imagine how hard it would be if you knew that coming forward carried a real risk that you’d be the one sent to prison instead of your rapist!

I tried to pooh-pooh this to myself, but, the more I thought about it, the worse it seemed.  Serial rapists, knowing that creating simple doubt is no longer be enough to get them off the hook, would start trying to frame their victims for rape, Gone Girl-style.  In order to get the drop, rapists could even start accusing their victims first, reaping the benefits of making the first accusation.

And the new affirmative consent regime would incentivize all this.

It seemed to me that the new rape regime would become, if anything, even worse than it is today, both for victims and for the falsely accused.  The only people who wouldn’t be negatively impacted by the new rape laws would be the rapists.  My proposal would still have the desired effect of completely ruining (and partially criminalizing) the consensual non-marital sex scene, which was great, but, if it meant worse outcomes for rape victims — who have a hard enough row to hoe as it is — I didn’t think it was worth it, so I put the whole thing on the shelf.  I intermittently pulled it off the shelf and played with ways to fix it, but the only idea I ever had was, “Believe the woman is telling the truth and the man is lying.”  Unfortunately, aside from being an obviously sexist and unjust rule of construction, it is simply a fact that men can be both raped and falsely accused, and both happen at low but non-trivial rates, so it wouldn’t be remotely effective.  The proposal remained on the shelf.  My post, quoted above, was never published.

This was 2012.  Fast-forward to today.

As it turns out, I was not the first person to think of this.  Tiny Antioch College tried something similar (only without the marital exceptions) in 1991.  Everyone made fun of it, but, twenty-odd years later, about two years after I started working on this idea, California suddenly came out of nowhere and passed an affirmative consent law that applies to all college codes of conduct.  California.  Home of the Left.  And the Left… cheered?  Seriously, that link is Ezra Klein celebrating the fact that “men [will] feel a cold spike of fear when they begin a sexual encounter.”  I’m happy about ruining fornication for everyone, but why are you?   This link is Erin Gloria Ryan, whom I expected to be the foremost opponent of these laws, angrily denouncing the law’s detractors in her trademark, savagely ad hominem, style.

Libertarians freaked out, correctly pointing out that this law would not help stop rapes, but would only hurt casual fornicators.  Conor Friedersdorf, a proud Leftie who nevertheless frequently engages in thinking, mentioned the counter-accusation problem I had foreseen.  The mainstream Right noted the same things, but spent most of its energy mocking the law.  (However, Heather MacDonald had a must-read piece dissecting the “neo-Victorianism” that this law represents, to which David Brooks had a must-read response.)  The Right also continued arguing (correctly) that campus rape tribunals are kangaroo courts, farces of justice injuring both accusers and accused more or less at random (though they are increasingly stacked against the accused).  These tribunals — mandatory under Title IX and dramatically expanded by the Obama Administration — have no business existing in the first place, because the proper venue to try a rape charge is in court, and affirmative consent policies only empower them to ever greater injustices.

(On that note, I thought it instructive that California applied the “affirmative consent” standard only to college codes of conduct, not to the California criminal code.  Perhaps they recognize what a catastrophe it would be for all concerned if the affirmative consent standard weren’t just a tool to help college administrators persecute accused rapists, and were applied in a system that actually has due process of law.)

This all happened last year, and I figured the affirmative consent was doomed, so I made no comment.  California passes all sorts of weird bills, and presumably the Left — given a little time — would realize that “affirmative consent” standards hurt rape victims and (worse!) undermine the Left’s pièce de résistance, the Sexual Revolution, leading them to withdraw support for the idea.  I mean, once Jonathan Chait gives up on your feminist crusade, it’s all over.  (I’m pretty sure that’s a Rule of Acquisition.)

But I was wrong.  This has not happened.  Affirmative consent has only grown more prevalent, although, even now, nobody has legislated it into criminal law.  This week, I learned that my own local state university, the University of Minnesota, is on the verge of imposing an affirmative consent policy of its own.

What actually prompted me to finally post about this, though, after so many years thinking about it, was a tidbit I picked up on social media today: a group styling itself the “affirmative consent project” has started actually circulating a sexual consent contract.  I laughed very hard.  All my predictions are coming true!  They are actually going to make kids sign a contract before they have sex, and save it for years!  Every time they do it! My only mistake was in thinking that the Left would need some prompting from the Right to so radically violate their “stay out of other people’s bedrooms” principle they’ve spent so many years pretending to care about.

This is certainly amusing, and, in some ways, the first wave of affirmative consent is useful.  But my next round of predictions suggests that increasingly savvy rapists will (easily) exploit the new rules, leading to an unraveling of justice for both rape victims and falsely accused rape perpetrators.  I don’t want that.  Even the destruction of the college hook-up scene isn’t worth causing more harm to rape survivors… and the lack of a marital exception to these policies means the damage could eventually extend far beyond fornication, harming all sexual relationships of any kind.   We should repeal these policies before we get anywhere close to that.

I recognized these problems after only a couple hours thinking about the idea, and my concerns led me to shelve the idea for more than two years.  But the State of California, and now the U of M board of regents, have now gone ahead and passed actual laws, affecting millions of people, apparently without bothering to think about it as much as I did for a blog post.  Once these policies are repealed, everyone in California and on the U of M board of regents needs to sit down for a very long think about passing real, very powerful laws without bothering to consider their unintended consequences.