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California Accidentally Legalizes Campus Sex

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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What to make of California's new "affirmative consent" legislation for college campuses? The proposed law has drawn much criticism, and for good reason. It suggests that the main cause of rape is confusion about whether consent has been given -- and, at that, doesn't seem to offer a significant improvement over "no means no." It sets a special standard for college women. It seems to criminalize most sexual encounters that most people have ever had, which (I hear) don't usually involve multistep verbal contracts. It appears designed to be unequally applied to men and women or, alternatively, to create a lot of cases of "mutual rape." And it doesn't fix the actual thing that makes rape hard to prosecute, or stop, which is that there are often only two witnesses who know whether or not the sex was consensual, one of whom was often intoxicated.

It is, in other words, an impossibly overspecific standard that seems impossible to enforce consistently. And yet, while most of the commentariat views this overspecificity as a bug, I wonder if it isn't actually a feature.

Prosecutors, and regulators more generally, like vague standards that are impossible to enforce consistently. It gives them a great deal of discretion in whom they target and how. It is a threat that can be wielded to force pleas to lesser crimes or other "voluntary" actions that obviate the need for a messy trial they might lose.

If university administrators moved to an affirmative-consent standard by themselves, parents and alumni, particularly the parents of sons, might complain. But if lawmakers force them to it ... well, it's another weapon in the arsenal that allows them to target men who, say, generate too many plausible but impossible-to-prove complaints. The part of me that was a potentially vulnerable college woman understands the desire. But the part of me that is suspicious of authorities with broad and vague powers nonetheless thinks we should look for a better way.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor on this story:
James Gibney at jgibney5@bloomberg.net