YOU are a rapist; yes YOU!

June 23

[UPDATE: Gawker readers, see Here's how the smear machine works.  Then consider why you keep falling for Gawker's clickbait.]

Cathy Young has an excellent column in Reason.com about a bill in California that would require universities in that state to use an “affirmative consent” standard for evaluating sexual assault complaints in the campus disciplinary system for complaints involving students. Two obvious questions arise: (1) Why just on campus? If this is a good idea, why not make it part the tort system? If that’s too drastic, let’s start, with say, members of the California legislature. For internal disciplinary purposes, their sexual activity should be governed by the same standard they want to impose on students. What plausible grounds could they have for rejecting application of a standard they would impose on students to themselves? (2) If we’re limiting things to campus, why just students? Why should students be judged under this standard, but not faculty and administrators? It’s hardly unheard of for professors, administrators, and even law school deans to engage in sexual relationships of dubious morality. The answer is that it’s not a good idea, and it’s a product of the current moral panic over the hookup culture.

But at least the affirmative consent standard leaves room for a defense that the complainant provided appropriate non-verbal cues that signified consent. By contrast, the Office on Violence against Women, a U.S. Justice Department subsidiary, informs us on its home page that “sexual assault is any type of sexual contact or behavior that occurs without the *explicit consent* of the recipient.” This is not, in fact, the legal standard in any jurisdiction in the United States, and it’s not because it’s completely absurd. The vast, vast majority of “sexual contact or behavior” is initiated with only *implicit consent.* [UPDATE: There is one type of sexual relationship that, as I understand it, involves primarily explicit consent--the relationship between a prostitute and her (or his) clients, with exact sexual services to be provided determined by explicit agreement in advance.] The DOJ website definition makes almost every adult in the U.S. (men AND women)–and that likely includes you, dear reader–a perpetrator of sexual assault. Just leaning over to give your date (or your spouse) a kiss without asking first and receiving a yes comes within stated definition of sexual assault, regardless of how many times you’ve done it before without objection.

In fairness, the examples the OVW gives–forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape–are proper, at least if we assume they mean “nonconsensual fondling.” Nevertheless, it’s embarrassing that DOJ allows such an inaccurate and ridiculous definition of sexual assault to be on its website.

UPDATE: A reader points to a very funny video, elaborating on what would happen under an “express consent” standard.

FURTHER UPDATE: Hans Bader has much more.  Read the whole thing.

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA.
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