As California's colleges and universities adjust to a new state law mandating a standard of "affirmative consent" in sexual assault and rape cases—as well as campus judicial proceedings with a "preponderance of the evidence" standard of guilt—observers are trying to anticipate how these policy changes will affect the lived culture of sexual acts among students, most in their late teens or early 20s. The law's effect on campus culture will determine whether it advances the ends sought by supporters, who hope to reduce the incidence of sex crimes. Yet there is broad disagreement about whether and how sexual culture will adapt to the new regime. Even those who agree that the law is good or bad disagree about its likely effects.
What follows are some of the wildly divergent forecasts, some hopeful, others cautionary. Taken together, they illuminate different notions of human nature, the reach of public policy, and what life on California's many college campuses is actually like. The scenarios that they anticipate are not always mutually exclusive.
In the 2008 essay collection Yes Means Yes!: Visions of Female Sexual Power and a World Without Rape, contributor Jill Filipovic captured something very much like what supporters of California law hope sex on campus will look like in the near future.
"Plenty of men are able to grasp the idea that sex should be entered into joyfully and enthusiastically by both partners, and that an absence of 'no' isn't enough—'yes' should be the baseline requirement," she wrote. "And women are not empty vessels to be fucked or not fucked; we're sexual actors who should absolutely have the ability to say yes when we want it, just like men, and should feel safe saying no—even if we've been drinking, even if we've slept with you before, even if we're wearing tight jeans, even if we're naked in bed with you. Anti-rape activists further understand that men need to feel empowered to say no also. If women have the ability to fully and freely say yes, and if we establish a model of enthusiastic consent instead of just 'no means no,' it would be a lot harder for men to get away with rape. It would be a lot harder to argue that there's a 'gray area.' It would be a lot harder to push the idea that 'date rape' is less serious than 'real' rape, that women who are assaulted by acquaintances were probably teases, that what is now called 'date rape' used to just be called seduction."
There is a long history, Ann Friedman writes in New York, of young women having sex "that’s consensual but not really much fun," and as long a history "of their male partners walking home the next morning thinking, 'Nailed it.'” She believes that "these droves of sexually dissatisfied young women will be unwitting beneficiaries" of California's new law, because "confirming consent leads to much hotter sex." She doesn't anticipate that the law will thwart rapists, "who clearly don’t care about consent, be it verbal or nonverbal." But she believes that "most young men ... are worried about inadvertently doing something in bed that their partner doesn’t welcome" and "actively thinking about whether their partner is enjoying herself." As a result, they'll now find life "easier for both them and the women they sleep with," because the law "creates a compelling reason for both parties to speak up and talk about what they like. In essence, the new law forces universities—and the rest of us—to acknowledge that women like sex. Especially sex with a partner who wants to talk about what turns them on."
If implemented as intended, California's affirmative-consent law will intrude on "the most private and intimate of adult acts," Ezra Klein posits. It will settle "like a cold winter on college campuses, throwing everyday sexual practice into doubt," creating "a haze of fear and confusion over what counts as consent" and causing men "to feel a cold spike of fear when they begin a sexual encounter." Meanwhile, "colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) ... for genuinely ambiguous situations" in case that "feel genuinely unclear and maybe even unfair." Klein is a supporter of the law. His followup article on the culture of affirmative consent is worth your while.
Heather MacDonald describes affirmative-consent laws and the activist movement that produced them as "a bizarre hybrid of liberationist and traditionalist values" that "carefully preserves the prerogative of no-strings-attached sex" but adds "legalistic caveats that allow females to revert at will to a stance of offended virtue." She regards the "assumption of transparent contractual intention" to be "laughably out of touch with reality," and believes it implicitly treats women as "so helpless and passive that they should not even be assumed to have the strength or capacity to say 'no'" to stop unwanted sexual encounters, ushering in "a neo-Victorian ethos which makes the male the sole guardian of female safety."
Judging that the policies ushered in by this neo-Victorian ethos misunderstand sex and will take the fun out of it, she tells her fellow conservatives, "What’s not to like? Leave laments about the inhibition of campus sex to Reason magazine." As she sees it, "If one-sided litigation risk results in boys taking a vow of celibacy until graduation, there is simply no loss whatsoever to society and only gain to individual character. Such efforts at self-control were made before, and can be made again."
Another conservative, Conn Carroll, reaches a closely related conclusion. "If you are in a committed relationship there is very little chance each new amorous encounter with your partner will result in hard feelings either way," he declares. "But if you are constantly switching partners, each new pairing is a roll of the dice. You have no idea how each woman will react the next morning. If you sleep around there are simply way more opportunities for things to blow up in your face."
Like supporters of affirmative-consent laws, Ross Douthat of The New York Times doesn't anticipate that disciplinary cases springing from them will be particularly common, at least not enough to affect the behavior of the average student. "It seems very unlikely that any campus policy is suddenly going to make assault allegations commonplace, in a way that would have them intruding frequently into the social life of the typical college-going male," he writes. "Instead, 'yes means yes' will create a kind of black swan situation, where only every once in a while a man gets expelled for rape under highly ambiguous circumstances. And because the injustices or possible injustices will be rare, that 'every once in while' will not actually have much of a deterrent effect on men confronted with an opportunity for a drunken hook-up, in the same way that other very occasional disastrous consequences of binge drinking (e.g., death) seem remote to young men (or young women) who head out to get hammered on a typical Saturday night."
But he isn't arguing that there will be no significant cultural impact. Rather, he believes college males will react sort of like cable news viewers who develop persecution complexes:
It will be a distant-seeming outrage that mostly feeds a sense of grievance and persecution among the men who might (but mostly won’t) suffer unjust treatment at the university’s hands. Which means that rather than being a spur to some sort of reborn chivalry or new-model code of male decency, it will mostly encourage the kind of toxic persecution fantasies that already circulate in the more misogynistic reaches of male culture. See, the feminazis really are out to get us, the argument will go, and in bro lore the stories of men railroaded off campus won’t be seen as cautionary tales; they’ll be seen as war stories, martyrologies (in which even actual, clear-as-day predators are given the benefit of the doubt), the latest battle in the endless struggle between the Animal House gang and Dean Wormer … reincarnated now, in our more egalitarian feminist era, as a castrating Nurse Ratched.
The new standard of consent, in this scenario, will be neither reasonable enough to be embraced as a model nor consistently punitive enough to scare men away from drunken wooing. Instead, it will have a randomness, an arbitrariness, and an occasional absurdity that will encourage a mix of resentment and resistance. As such, it will lock in an aspect of contemporary sexual culture that social conservatives probably don’t talk enough about: The kind of toxic misogyny that feminists rightly call out and critique, but that also exists in a kind of twisted symbiosis with certain aspects of feminist ideology–answering overzealous political correctness with reactionary transgressiveness, bureaucratic pieties with deliberate blasphemy, ideologies of gender with performative machismo.
Hanna Rosin's Atlantic cover story on sexting among teens includes a passage about what prompts one young person to send a naked photo to another at one high school: "Boys and girls were equally likely to have sent a sext, but girls were much more likely to have been asked to—68 percent had been," she wrote. "Plenty of girls just laugh off the requests. When a boy asked Olivia, who graduated last year from Louisa County High, 'What are you wearing?,' she told me she wrote back, 'Stinky track shorts and my virginity rocks T-shirt.' A boy asked another student for a picture, so she sent him a smiling selfie. 'I didn’t mean your face,' he wrote back, so she sent him one of her foot. But boys can be persistent—like, 20-or-30-texts-in-a-row persistent. 'If we were in a dark room, what would we do?' 'I won’t show it to anyone else.' 'You’re only sending it to me.' 'I’ll delete it right after.'"
Today's male high-schooler pestering a classmates with 30 texts in a row asking to see her boobs is tomorrow's drunk freshman at a UC-Santa Barbara house party. It is conceivable that he will be acculturated into seeking affirmative-consent—and that he will seek it by asking for intercourse or a blow job again and again and again. At what point is he guilty of sexually harassing one or more of his new classmates? I suspect that's an issue campuses will face more frequently as consent-seeking becomes both affirmatively encouraged and more explicit than before. The spirit of the standard would of course preclude pestering one's way to "yes." But we're talking about regime created precisely to address the behavior of young men who'll adhere to the letter of the law or social norm at most. A new standard won't extinguish their impulse to push the limits as far as they can while avoiding punishable acts. Pestering may be their adaptation. And somewhere, sorority girls will arrive at a frat party where, upon entering (if not as a condition) they'll confront men pressuring them to preemptively consent. "This bracelet means you're good to hook up–and it comes with a free shot!"
Will that be tolerated?
Some opponents of California's law have argued that predatory men will "game" the new system by responding to an accusation of sexual assault with a countercharge of their own. Consider a case arising from drunken sex that one party regrets the next day. A college male is informed that charges are being brought against him. "She couldn't give consent? Neither could I. In fact, I felt uncomfortable too—she came to my room, neither asked for nor got a yes, and I was way more drunk." Such a case could present thorny issues for a campus tribunal.
But I'm imagining a different scenario, in which the affirmative-consent regime coincides with a noticeable increase in earnest complaints by men against women. It isn't that I foresee a monumental shift. At the same time, if campus norms about consensual sex change significantly and rapidly, just as traditional taboos against women initiating sex are waning and explicit efforts are made to diminish taboos against reporting sexual assaults, is it possible that a population acculturated to expect men always want sex will make and be called on more misjudgments?
Consider the following passage from the fascinating New York Times Magazine article on Wellesley, a women's college, and the growing number of trans men attending it:
Kaden Mohamed said he felt downright objectified when he returned from summer break last year, after five months of testosterone had lowered his voice, defined his arm muscles and reshaped his torso. It was attention that he had never experienced before he transitioned. But as his body changed, students he didn’t even know would run their hands over his biceps. Once at the school pub, an intoxicated Wellesley woman even grabbed his crotch and that of another trans man.
“It’s this very bizarre reversal of what happens in the real world,” Kaden said. “In the real world, it’s women who get fetishized, catcalled, sexually harassed, grabbed. At Wellesley, it’s trans men who do. If I were to go up to someone I just met and touch her body, I’d get grief from the entire Wellesley community, because they’d say it’s assault — and it is. But for some reason, when it’s done to trans men here, it doesn’t get read the same way. It’s like a free pass, that suddenly it’s O.K. to talk about or touch someone’s body as long as they’re not a woman.”
How would a disciplinary panel at Wellesley react to a trans man charging a woman with sexual assault? How would UC-San Diego's student body react to a straight male bringing charges against a straight female for giving him a blow job when he was very drunk that he regretted the next day—or two weeks later upon realizing that he contracted an STD from the encounter? My guess is that, 10 years hence, such cases will be far from common, but still far more common than they currently are.
That isn't to say that all sexual assaults would be treated less seriously in this scenario. Some sex crimes will always strike people as maximally abhorrent and awful. But if a person can technically run afoul of sexual-assault rules by, say, misreading the vibe on a first date, leaning over during the movie, and initiating an unwanted kiss, there will be scenarios on the margin—perhaps not that one exactly, but you get the idea—where observers agree affirmative consent was violated and that some sanction is warranted, but nevertheless feel the incident is different in degree or kind than their bygone notion of what the crime "sexual assault" is.
There are two spins to put on this. On one hand, perhaps it is salutary to maintain undiminished taboos around all rape and sexual assault, preserving clarity about its awfulness, avoiding ignorant tropes like the canard that date rape isn't "as bad" as stranger rape, and conferring maximal opprobrium on those who act sexually without consent. Or perhaps a spectrum of opprobrium would be salutary, as in cases where the victim regards himself or herself as having been wronged, but eschews taking any action because he or she doesn't believe it was sexual assault, or want to be subjected to—or subject someone else to—a sexual-assault case. In some ways, this is similar to the tension between wanting racism to carry a powerful taboo and seeing situations where that very taboo makes it harder to call out and remedy conduct that is mildly racially offensive.
Though some of the foregoing scenarios are of my own creation, I don't have any idea how affirmative-consent laws will actually play out on California's college campuses, how variable the effect will be on different college campuses, or whether the overall change in sexual culture will be salutary, negative, or negligible. By temperament, I tend to worry about unintended consequences more than most, but the legislature has spoken and early results will be in soon enough. I hope to report on campuses and find out how they're working.
It is nevertheless worth thinking through scenarios like the ones above, for the law is very likely to have a mishmash of positive and negative consequences coexisting with one another—and perhaps anticipating potential pitfalls as well as opportunities for worthwhile change can help college students and administrators to steer things in a slightly better direction than they'd float on their own.
With that in mind, I hope current college students (or recent grads) who've made it through the musings of out-of-touch oldsters like me will reflect on their observations and experiences, and then send email articulating how they think affirmative-consent laws will play out (or have played out) on campus. What are commentators who haven't themselves been college students for years or decades missing, or misunderstanding, about sexual culture on campus today or how it will change? Insightful email sent to firstname.lastname@example.org will published as reader letters.