Students at Occidental won't be safer just because prosecutors have new reach.

Photographer: Patrick Fallon/Bloomberg

'Affirmative Consent' Will Make Rape Laws Worse

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.”
Read More.
a | A

The "tough on crime" posture is going out of style, even on the right, except when the crime in question is rape. Advocates complain that it is too hard to lock up predators. And so, according to Judith Shulevitz, the American Law Institute, an influential, invitation-only body that publishes model codes and other suggestions for legal reforms, has been considering how we could make the law harsher.

Here is a hypothetical that some concerned members of the group have raised:

Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).

Okay, we can all agree that this is nutty. But as Shulevitz goes on to point out, this is what happens when you combine two principles designed to make it easier to prosecute sexual assault: affirmative consent and "enlarged definition of criminal sexual contact that would include the touching of any body part, clothed or unclothed, with sexual gratification in mind." The result is that "if Person B neither invites nor rebukes a sexual advance, then anything that happens afterward is illegal."

Defenders of the thinking behind this proposal might say no prosecutor is going to bring such a silly case, but that's the opposite of comforting. Who would pass a law intended to be unenforced in almost every case? It's eerily totalitarian: a sort of blanket mandate convenient for targeting undesirables and threatening suspects.

Prosecutors often add minor crimes to major ones, like forcible rape, then pressure people to plead down to the less serious charge when there's not enough to convict on the more serious crime. Juries may be willing to convict on any charge, if they think the accused is a bad guy who probably did something (and let's not forget how often race and class play into assuming someone is "a bad guy who probably did something").

Moreover, as I've pointed out before, the legal process itself can easily become a punishment. That's why courts have a lot of procedures to weed out frivolous lawsuits and prosecutions. But under the proposed standards, these charges will not be frivolous; the behavior, however common or hard to prove, will in fact be against the law.

In fact, I'm struggling to know how a man (or a woman) could ever be fully sure that they were not breaking the law. Even affirmative consent can, after all, presumably be withdrawn at any time -- without a clear "no," under the prevailing thinking about affirmative consent. I'm reminded of a joke about a hypochondriac going to the doctor because he's worried about a silent heart attack, which is to say, a heart attack with no symptoms. The doctor runs a bunch of tests and says: "You're fine, sir. I did all the tests, and you haven't had a silent heart attack." The patient looks at him and says: "Yeah, but what about now? I still have no symptoms." If silence does not signal consent, does it signal consent has been revoked? You see the mess this approach creates.

So why are we considering such an insane standard? I've heard two answers. The first is that this is the only way to get convictions for the nonconsensual instances of an act to which adults routinely and enthusiastically consent (unlike, say, being beaten or robbed, after which it's generally correct to assume a lack of consent by one party), especially because this is an act often witnessed by only two people, one or both of whom may have been intoxicated. I take this answer seriously. I too find it horrifying that rape is so easy to commit and so hard to prove, and that women therefore live in fear of it. Do I want to find a way to stop women from feeling that? Yes. Yes.

But this "affirmative consent" approach will not actually make it so; predators who knowingly violate the law can, after all, always insist that they got that affirmative consent. Instead of subtracting fear, it adds a new terror: that men should live in constant dread of the law -- that, as Ezra Klein wrote, "men need to feel a cold spike of fear when they begin a sexual encounter." This is not the solution, or even a solution. This is, in fact, a problem.

In the 1970s and 1980s, a lot of people were walking around this country with a constant background terror of being assaulted, and a lot of people decided that the way to solve that problem was to make a lot of men, mostly poor and black or Hispanic, feel in constant terror of the justice system, by expanding the laws on the books so that prosecutors and judges had a lot more power to put people in jail for long periods. The advocates thought that this form of terror was better, and more manageable, but in fact, it is worse, because it weakens the vital principles of equal justice and leaves the victims of the system with no recourse at all. You can call a cop to catch a criminal, but who do you call to protect you from the prosecutor? And from the legislators who handed the prosecutor such power?

So the argument that rape is pernicious and hard to prosecute is not satisfactory. The other argument for enacting "affirmative consent" laws is even worse: that somehow these legal changes will change the culture and human nature so that we no longer have gray areas in which two people might have different perspectives on one event. This is asking far too much of the law.

From before that primordial moment when two gametes first formed a zygote, sex has always been a complicated morass of conflicting interests, confusions and, yes, predators. No law is ever going to fully resolve all the manifold difficulties. And we will certainly not end a culture of fear by adding a source of terror.

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:
Philip Gray at philipgray@bloomberg.net