Monday, July 27, 2015

Libertarians should support affirmative consent

The State of California made history last fall by becoming the first state in the nation to adopt any form of a “yes means yes” standard for adjudicating rape on college campuses. The most important part of the bill requires all colleges and universities receiving state funds in California to adopt a policy that includes:

(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Predictably, many of my favorite libertarian commenters – from columnists on to FIRE president Greg Lukianoff – have come out strongly against the bill. State involvement in higher education is controversial in the first place, and to small government advocates, legislating the nuances of our most intimate relations is understandably even more upsetting. Just as libertarians want the state out of your bedroom on birth control, marriage, homosexuality, polygamy and infidelity, we are instinctually repulsed to laws dictating the minutiae of our sexual encounters.

But I take a different view, and I don’t think it’s at all contradictory with my libertarian leanings. In fact, I think ideologically consistent libertarians should wholeheartedly support affirmative consent legislation. The reason is relatively simple, and it involves a body of law and philosophy with which libertarians of all people should be well acquainted: property rights.

Imagine Frank and George are neighbors. One day, George is in hurry to cut the grass, but he discovers his lawn mower won’t start – it needs repairs. Frustrated, he looks over to Frank’s yard and notices Frank’s lawn mower sitting idle. George is on good terms with Frank, and he suspects it wouldn’t be a problem if he were to borrow the tractor for the next hour. Unfortunately, Frank is not home for George to ask his permission, and does not answer his cell phone. But in his haste, George decides to just assume Frank will be fine with it, and uses his neighbor’s tractor to cut his lawn.

Now, suppose Frank came home a few minutes later and caught George using his tractor without permission. Further suppose that for whatever reason, Frank becomes incensed by this, and they get into a riff. In the course of things, their neighborly relationship deteriorates, and Frank decides to file charges against George for stealing his things. They show up in court on the arranged date, and the judge asks George if he used Frank’s lawn mower. He admits he did.

At this point in the proceedings, would you think it an appropriate course of legal inquiry for the judge to turn to Frank, and ask “Well, what reason did you give this man to believe that he COULDN’T use your lawn mower?”

Or, would it be more consistent with your notions of ownership for the judge to ask George a follow-up question: “Well, why did you believe this was okay? What indication did your neighbor give you that you had permission to use his property?”

As Kevin Drum of Mother Jones observes, we already apply affirmative consent to most things. If improperly borrowing a lawn mower seems like too trivial a violation to analogize, imagine instead that it was a car your neighbor borrowed from you, so that he could run an errand at the grocery store. Or, imagine they decided to use your house to throw a party while you were away on vacation. Neither of these rise to the level of bodily violation either, but both would be a rather intrusive request, to use a very private piece of property, which most people don’t just lend out on a whim. Either request might plausibly be consented to had the question been posed preemptively by a close and trusted friend. But neither request can be assumed in the absence of explicit permission.

Sex is the same way. People’s bodies are their first and most important form of property, truly the origin of all other property rights. For a group which claims to value the right to self-ownership so highly, many libertarians seem insufficiently outraged by the extent to which these foremost of all rights are being violated in the campus rape epidemic. If theft is the use or seizure of property without permission, and rape is the use of someone’s body without permission, we should apply the same legal standard to decide what constitutes “permission” both cases. Affirmative consent does that.

When I voice this opinion to my fellow libertarians, I usually encounter three main counterarguments. I’ll refute them here starting with the most common.

1. “Yes means yes renders the accused guilty until proven innocent.”

Reason’s Robby Soave makes versions of this argument here and here, while Shikha Dalmia made it here (quote: “by changing the assumption from "presumed innocent" to "presumed guilty," this new standard will inevitably snag some guys who earnestly meant no harm.) Cathy Young agrees, writing “It effectively shifts the burden of proof to the accused…In practice, this means that any minimally plausible charge is likely to be upheld.” The bulk of the objection arises from the idea that because the accused (often the man) needs to demonstrate he got consent for it to not be rape, he is essentially presumed a rapist until he can prove otherwise.

But this is not the case, because the accuser still has the burden of demonstrating that the accused used her body in the first place (and inversely, the accused has no burden to disprove this). Put another way, the accused is only called to demonstrate that they acquired consent if they already concede the sexual activity took place.

Again, this is analogous to theft. In the lawn mower analogy, the Fred still needs to prove that George did, in fact, use his lawn mower; if George denies that, the burden remains with Fred to demonstrate otherwise. And in like manner, if a woman accuses a man who she has never actually met of raping her (perhaps because she confuses him for the real guy), and he denies having ever penetrated her, the new law will not place any additional legal burden on him to clear his name.

Affirmative consent only comes into play in those cases where the accused concedes sexual advances took place, but claims they were justified because the other person consented to them. That this happens to encompass most college rape cases is precisely why it’s such an important addendum to the law. Unlike the “it wasn’t me!” defense, this second defense is a positive claim which requires substantiation from the defendant, in much the same way a claim of “acting in self-defense” or “not guilty by reason of insanity” requires substantiation in a murder trial. If George tells the judge “Yeah I used the lawn mower, but I thought I had permission to do so,” it is now he who is trying to demonstrate something in court – not Fred.

The accused need not prove he obtained affirmative consent any more than George Zimmerman needed to prove he feared for his life. He just needs to reasonably argue it.

Just as most men accused of rape on college campuses concede some sexual activity took place, George Zimmerman conceded that he killed Trayvon Martin. But penetration does not necessarily make you a rapist, and killing does not necessarily make you a murderer. There are some conditions (defined by law) under which killing is justified. So from that point on in his trial, the question before the court was this: “Is there a reasonable doubt that George Zimmerman killed Trayvon Martin, without it being in self-defense, as the state defines it?” And likewise, in rape cases adjudicated under a yes-means-yes standard, the question before the court is this: “Is there a reasonable doubt (or preponderance of the evidence, as the case may be) that person X penetrated person Y without receiving Y’s affirmative consent, as the state defines it?”

It is still the accuser who has the burden of proving the answer to that question is yes. The accused need only describe to the jury the positive indications of consent they received in order to make their defense plausible. If they cannot do that, they probably received no such indications, in which case they are probably a rapist. If they can, and those indications comport with the legal definition of consent and how it may be conveyed, the court’s line of questioning will likely return to the accuser to see if she (or he) can dispute those claims. And either way, the legal requirements for proving guilt are not inverted: it remains the accuser’s responsibility to surmount the evidentiary standard.

2. “Yes means yes restricts students’ due process rights by mandating the preponderance of the evidence standard.”

Greg Lukianoff of FIRE (who I deeply respect and generally agree with) made this argument to me in person at the Federalist Society’s National Lawyers Convention last fall. He basically argues that the “preponderance of the evidence” standard employed by the California law is too flimsy, and should be replaced by a “clear and convincing evidence” standard for so long as colleges remain in charge of the process (ultimately, both Lukianoff and myself would prefer these cases be adjudicated at the criminal level, and that colleges be left to set their own policies on the matter. See my follow up post on “caveats” for more on why).

But colleges have always used the preponderance of the evidence standard for allegations of wrongdoing, rape or otherwise. When students are accused of cheating or vandalism or underage drinking, colleges across the country must decide whether to expel them from school. There has never been a burden of proof on either party in these proceedings, and the new law does not add one. The “preponderance of the evidence” standard has never been considered a violation of the accused's due process rights in the past, because the maximum penalty a college can enact is expulsion, and nobody has a "right" to attend a college.

I share Lukianoff’s concerns that colleges are being unduly pressured to heighten their expulsion percentages by the federal government for political reasons. I also agree that on a moral level, rape is more equitable to murder and burglary (crimes deemed too severe for college courts, and so handled exclusively by state prosecutors) than it is to cheating on a test. But a more active role for college investigators is still appropriate here, for two reasons.

First, the criminal justice system has proven horribly lax about punishing (or even investigating!) alleged rapists for decades now, due in part to indifference and in part to the inherent difficulty of proving what goes on behind closed doors. If colleges cannot rely on the law to defend their students from rape, they must defend them in some other way.

Second, these cases arise on college campuses, between college students, at a vastly disproportionate rate relative to their occurrence in the non-college population. With all we know about college alcohol and hook-up cultures, this should strike you as intuitively likely even if you doubt the extensive empirical evidence for it. To the extent that there exists a “campus rape epidemic,” colleges have both moral and market justifications for doing everything they can to purge this epidemic from among them.

By analogy, the US military also has an enormous problem with sexual assault. Sexual assault is a crime, which can be prosecuted and sometimes is. Victims of sexual assault within the military are fully justified in filing criminal charges against their attackers should they wish. But in the event they choose not to do this, the military still has a strong interest in expunging potential culprits of sexual assault from its ranks. Consequently, men with a shady record of sexual assault accusations are very often kicked out of the military, even if the evidence arrayed against them does not rise to the level necessary to justify imprisonment. Nobody seems to have a problem with this, because combatting sexual assault in the military is seen as a more important priority than ensuring that nobody is ever unjustly denied employment there. So it is with college enrollment.

If we’re talking about the death penalty, it may indeed be better that 100 guilty people go free than it is for one innocent person to be condemned. But when the penalty is disenrollment from a course of study – merely the cessation of a business transaction – surely it is not better. This is especially true when the evidence suggests most rapes are committed by repeat offenders (such that the risk of letting one off the hook is greater than for crimes with lower recidivism rates).

From a macro perspective, people who truly care about the individual rights of college students should be much more alarmed by the reality of ongoing mass rape than by the risk that some student somewhere might be improperly expelled. You have no right to a collegiate education, but you do have one to bodily autonomy.

Finally, what of people who reject that premise? Many libertarians do not believe in natural rights theory and base their views on more utilitarian grounds. These people have voiced a litany of consequentialist objections to affirmative consent, which (broadly characterized) sound something like this:

3. Principle aside, the law is a pragmatic nightmare. Affirmative consent enacts sweeping and sudden changes to the legal definition of rape that do not comport with how most people have consensual sex, rendering most sexual encounters technically illegal. Consequently, it will either never be enforced (in which case why have it?) or result mainly in the expulsion of innocent people.

This view is generally predicated on a misconception about what affirmative consent requires. Due to the “yes means yes” marketing, many people seem to think it demands the exact word “yes,” without substitute, in response to a direct, formal and explicit request for permission to perform a specific act. Others imagine a sort of clumsy spoken contract, something along the lines of “I hereby consent to let you finger my vagina,” etc. They worry that if this phrase or some rough equivalent is not murmured at each and every stage of the escalation (which it obviously won’t be), it is rape. Slate’s Amanda Hess catalogues the hysteria:

“You may have heard of this bill as the one that would require students to draft up a written sex contract before bed or constantly proclaim “yes, yes, yes!” at every slight readjustment, thereby practically redefining most sex as rape. The Fresno Bee editorial board interpreted the bill to mean that “ ‘yes’ only means ‘yes’ if it is said aloud.” The Daily Californian, the independent student newspaper of UC–Berkeley, also claimed that affirmative consent is necessarily verbal. RH Reality Check advanced the game to approvingly say that affirmative consent requires “a verbal or written yes.” If consensual sex entailed that level of consent, millions of couples would be unsuspectingly raping one another every night of the week.

There’s a lot of hyperbole here, and perhaps it’s born of defensiveness. People likely use their own college sexual encounters to envision how these things go down, and fret that in their experience, there wasn’t always an explicit question asked. Maybe kissing escalated into heavy petting which escalated into intercourse somewhat seamlessly, with few words spoken in the process. Could I be found guilty of rape, they panic? Perish the thought! Any standard that might catch up innocent, well-meaning people – people like them! – must be absurd.

Were these wild claims about what consensual sex must look like true, I would agree that affirmative consent amounts to an unreasonable burden few people would actually follow. But they’re not true, because that’s not what “affirmative” means in this context.

First off, nothing about the word “affirmative” requires that the consent be verbal. People communicate with looks and body language all the time, and this is especially true during sex. Just as certain behaviors could convey a “no” under the old standard without requiring that the word be said, there is such thing as a silent yes. Even affirmative consent opponent David Bernstein concedes that “the affirmative consent standard leaves room for a defense that the complainant provided appropriate non-verbal cues that signified consent” in this post, as means of excoriating the even stricter standard of “explicit consent” endorsed by the Office on Violence Against Women (which I, too, oppose as a legal requirement). By any sane definition, “yes means yes” does not require that the yes be explicit or detailed. It just requires some “affirmation” of consent. Active, enthusiastic participation in the entirety of the sexual activity counts as that, even if no words were spoken and no contract was signed.

Interpreted as it should be, this does comport with how most people have sex. Without getting into too much detail, I’ll put the matter this way: do women who are excited about impending intercourse normally lie on the mattress motionless, spread-eagle, like a fucking starfish? Or do they generally do something, participate in some way, that lets their partner know they’re into it and provides some active affirmation that they are on board with the proceedings?

Screw it, I will get into detail! Affirmative consent can be conveyed by being on top – by riding a man in the cowgirl (or reverse cowgirl!) position. Affirmative consent can be conveyed by grabbing the penis and guiding it in from the missionary position. It can be conveyed by text messaging dirty invitations from afar. It can be conveyed by taking off one’s panties. It can be conveyed by purchasing a condom and winking, or asking if he has a condom with a suggestive look on one’s face. None of these behaviors override an explicit no, nor even necessarily prove that the consent was ongoing throughout. They may not settle the matter entirely, or preclude any possible holding of wrongdoing on the part of the accused. But they could all be plausibly cited in court as an indication of affirmative consent that would satisfy the law’s language and pass the rational person test, without requiring any oral communication whatsoever.

Of course, some schools may not share my interpretation of the law, and opponents worry the text is too vague to make clear whether the above actions would constitute consent. But for those worried about government overreach, broad text is a strength, not a flaw. In fact, it is precisely because the parameters of affirmative consent are left unspecified that the breathless fear of expulsions gone haywire is misplaced. On the places where the law is vague, it leaves discretion with the schools: precisely where that discretion lie before the law was passed. Phrased differently, individual colleges will only interpret the law in a way that results in vastly more expulsions if they already otherwise wanted to expel vastly more students (which, again, they were already free to do).

Cathy Young objects that a claim of nonverbal affirmative consent “would leave fact-finders, in real courts or campus pseudo-courts, to try to decide such questions as: Was a head motion a nod that indicated a "yes"? Does pulling someone closer during an embrace amount to consent to sex? Does a passionate response to a kiss amount to a "nonverbal cue"?

Perhaps, but courts are already involved in adjudicating the minutiae of sexual encounters. The law just gives them much-needed guidance on how to do so consistently and fairly, where previously there was none. Misinterpreted body language of the sort Young describes happens every week on college campuses, and college tribunals are already called upon to determine if an assault occurred in those cases. At present, the question most of them have been using for that task is “did any of those signals amount to a no?”. That shouldn’t be the question; it should be, “did any of those signals amount to a yes?” It still won’t always be easy to answer this question, but at least this new one approaches consent from the libertarian mindset of transferrable self-ownership.

With this in mind, the consequentialist argument for Yes Means Yes is really quite sensible. Hess explains:

“This standard improves on the old “no means no” model in a number of ways. A partner who is asleep or passed out can’t say “no.” Neither can a partner who’s frozen in shock or fear when an encounter escalates into an assault. Victims who are threatened with sexual assault aren’t always equipped to respond in rape prevention talking points. Just like with any other violent physical assault, many victims respond by shutting down, going silent, or laying motionless, hoping not to anger their attackers further, or disassociating from the attacks as an attempt at self-preservation. Also, consenting to sex one time doesn’t mean consenting to sex any other time. And consenting to one act (like vaginal intercourse) doesn’t imply consent for all other acts (like anal sex). Having sex with a person who is lying limply on a bed is not consensual, unless that person happens to be really, really into that—but that’s a situation that requires a conversation, not an assumption.

So are affirmative consent laws a good idea? If they are broad enough to include nonverbal cues, I think so. If we can admit that enthusiastic consent is often communicated in body language or knowing looks, then we must also accept that the lack of consent doesn’t always manifest itself in a shouted “no” or “stop,” either. It shouldn’t be the sole responsibility of the uninterested party to speak up during a sexual encounter. If you think it’s easy for a person to just say no, then why would it be so hard for his or her partner to just ask?"

That will hopefully be the only major consequence of a legal shift towards affirmative consent: pressure on men to just ask. Affirmative consent will very likely change nothing about how loving, committed couples have sex. Where it might have a chilling effect is on promiscuous frat bro culture where guys compete to see who can fuck the most women. If that happens, it would be a major step forward for society. I disagree with a lot of what Ezra Klein wrote on the law, for reasons Connnor Freidersdorf explains well here. But I agreed wholeheartedly with this part:

“The Yes Means Yes law could also be called the You Better Be Pretty Damn Sure law. You Better Be Pretty Damn Sure she said yes…If you're not, then you better fucking ask.”

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