I once watched a comedian’s stand-up routine about discovering the existence of the “silent heart attack” — a heart attack with no outward symptoms. He rushes off to his doctor and says, “I have no symptoms! I’m obviously having a silent heart attack!”
“But what about now?” the comedian demands. “I still have . . . no symptoms.”
It was moderately funny at the time. It’s also a perfect summation of the problem with making “affirmative consent” the standard for sexual assault.
The idea behind affirmative consent sounds harmless enough; make sure your partner is actively interested rather than passively going along. But legal systems cannot be run on harmless generalities. They demand firm guidelines, and so many advocates for affirmative consent say you must obtain unambiguous agreement before you so much as touch the other person, and at each step thereafter.
Frankly, one suspects the classic public choice problem: regulators who have no direct experience with the activity they propose to regulate. As everyone else knows, but affirmative-consent supporters are apparently yet to discover, the sexual ideal is to lose yourself in the moment, the other person. That cannot happen if every encounter must be navigated with the lawyerly detachment, and mutual wariness, of a bilateral trade negotiation.
Worse still, if one party later claims they weren’t willing, affirmative consent effectively shifts the burden of proof to the accused, while leaving no way to provide that proof, absent a written contract. Or even any way to know that what they’re doing is legal — your partner may have been saying, “Yes, please!” five seconds ago, but what if that’s followed by a lull in the person’s active participation? “What about now?”
Scientists divide system feedback into two kinds: positive and negative. Negative feedback is how your thermostat runs: If the house gets a little too warm, the thermostat says “nope” and turns off the heat. Positive feedback is more like the rewards that salespeople get for hitting certain targets.
Positive feedback sounds much nicer. But as any biologist, or sales-force manager, can tell you, systems that rely entirely on positive feedback are unstable. They have no natural stopping point, no way of saying “enough.” Which is the fundamental problem with affirmative consent: There is no way to be completely sure that consent was sufficiently affirmative. That’s why good systems almost always incorporate at least some negative feedback — and why rape laws have historically relied on “no means no,” not “yes means yes.”
Affirmative consent’s plain unworkability hasn’t damaged its appeal in some quarters. California in 2014 and New York in 2015 imposed these rules on state college campuses. On Monday, the American Bar Association’s House of Delegates considered a proposal to urge state legislatures to adopt an affirmative-consent standard in their criminal codes. The idea drew the support of 165 ABA delegates, but they were outnumbered by 265 more-sensible colleagues, who voted to table the measure indefinitely. But the idea remains in the air, and there may well be state legislators whose interest has been piqued by the ABA.
The impulse behind these rules is, of course, understandable enough; there are unavoidable gaps in “no means no.” Many women are raised to be “nice,” and to avoid saying no. Young people often incapacitate themselves with drink until they can’t, or won’t, say the words they ought to say. Affirmative-consent laws would give prosecutors broad discretion to go after anyone they think is exploiting those sad realities. One way or another, most people would violate the law, but that’s almost the point, rather than an accidental side effect. As is the pervasive fear such power inspires, which seems primarily intended to scare men into saying “no” for partners who feel unable to.
Life would surely be easier for college administrators and prosecutors if affirmative consent were the law of the land. Then, too, it would be easier for them if people videotaped every encounter, starting with both parties using a breathalyzer and ending with a big thumbs-up and a filled-out consent checklist. Easier still if they eschewed sexual activity altogether and barricaded themselves in lonely bedrooms to watch “Law & Order” reruns.
Ludicrous? Yes, but is it any more ludicrous than potentially criminalizing almost every sexual encounter in human history?
The United States wouldn’t be the first country to decide that a police state was the solution to lawless behavior, or to legally reify the notion of the helpless female. But if we do, we will learn, as previous generations did, that there are even worse things than crime. Among them, a legal system that makes everyone into either a victim or a criminal.
Read more from Megan McArdle’s archive, follow her on Twitter or subscribe to her updates on Facebook.