No, California’s new affirmative consent law will not redefine most sex as rape

Rape is when you have sex with someone who doesn’t want to have sex with you.

I feel compelled to offer that reminder because after reading Jonathan Chait’s dire warning about California colleges’ “radical” new affirmative consent standard, you might find yourself confused. He claims that the new law will legally redefine “most, and possibly nearly all, sexual encounters” as rape.

It will not. Rape is defined by an absence of consent. I would argue–and I don’t think Chait would disagree–that, ethically, that has always been the case. And thanks to decades of feminist efforts to reform rape laws, that’s increasingly the legal standard too. In 2011, the FBI changed its official definition of rape–that was so outdated it spoke of the forcible “carnal knowledge of a female”– to instead require penetration “without the consent of the victim.” And while too many state criminal laws remain rooted in archaic ideas of rape as a property crime, there’s been a trend toward a consent standard among them as well. Certainly, the idea that non-consensual sex is rape is the message of most public awareness and educational campaigns against sexual violence geared toward young people in recent years. As the National Center For Higher Education Risk Management’s 2001 guide for campuses notes, “The shift in this country away from defining sexual violence as force-based conduct has been championed by many colleges, and is now the law in a majority of states.” Plenty of individual colleges in fact already require affirmative consent in their policies. This legal and cultural shift obviously isn’t complete–state laws remain a mess and we’ve still got politicians talking about “legitimate rape” and teenagers admitting that they didn’t “know exactly what rape was” because they’d “always pictured it as forcing yourself on someone”–but the idea that sex should be consensual–and if it’s not, it’s rape–is hardly radical these days. (I hope.)

Of course, California’s new law applies only to colleges’ disciplinary policies on sexual assault, so it actually doesn’t affect the definition of rape in criminal law whatsoever, but if it did, it would hardly represent some fundamental departure from this consent standard that’s increasingly accepted. A switch to affirmative consent just clarifies that consent is not the default setting and thus can’t just be assumed. In other words, it doesn’t broaden the core definition of rape–which most people now agree hinges on lack of consent–but does change what can (and, more importantly, cannot) be considered an indication of that consent. Here’s the heart of the affirmative consent part of the statute:

“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

The next section outlines a few scenarios that are not a “valid excuse” for failing to get affirmative consent, noting that people accused of rape can’t claim they thought they had consent if they knew–or should have known–that the victim couldn’t consent because they were “asleep or unconscious” or “incapacitated due to the influence of drugs, alcohol, or medication.” The idea that there are situations in which someone may be unable to give meaningful consent is, likewise, not new and radical at all–most states include such clauses in their criminal sexual assault codes.

Chait points to the fact that a number of feminists–including Ann Friedman and Tara Culp-Ressler–have hailed the law as being a welcome shift in our approach to sex as evidence that it is codifying “sweeping, wholesale change” into law before our societal norms have evolved enough to catch up. He writes, “California isn’t merely attempting to set out to nudge the culture in this direction. It is reclassifying all sex that falls outside those still-novel ideas as rape.” He concludes that the law establishes “a standard of justice that offends the moral sensibilities of a large number of Americans.”

Let’s set aside the fact that, again, California’s law has no bearing on the state’s criminal laws whatsoever. Even if it did, I think there’s an argument to be made for the role of laws in helping to shape societal norms and not just reflecting them–especially when it comes to something as entrenched in the culture as gendered violence. But let’s set that aside also.

Because what I really object to is this idea that affirmative consent is such a “novel” approach that “cultural attitudes about sex lie well outside the contours established by the state of California.” If that’s true then we’re more fucked than even this feminist killjoy thought. But I really don’t believe it is.

Yes, the old retro male aggressor/female gatekeeper model of hetero sex is slow to die. Yes, we still live in a culture that–through everything from pop songs to anti-rape campaigns themselves–perpetuates very harmful myths about consent. Yes, these messages are so accepted that there are high school boys in this country who literally don’t recognize rape when they see it happening–who witnessed the assault of a girl who “wasn’t moving,” “wasn’t talking,” and “wasn’t participating,” a girl described by her rapist as “like a dead body,” and still did not see that as rape because “it wasn’t violent.” Until that’s not the case, better education on consent–specifically, the exact kind of education required under the California law–is clearly necessary.

But feminist calls for changing norms around sex and consent sometimes risk being used to reinforce the falsehood–constantly exploited by rapists and their apologists–that consent is somehow confusing and murky. It’s really not. Indeed, research shows that most serials rapists know they don’t have consent and just don’t care. I’m willing to believe there’s probably a minority of perpetrators–likely young people who are just learning how sex happens in real life–who were genuinely unsure if they had consent and, because of entitlement or discomfort or likely some combination, went ahead anyway, perhaps to their regret later. While I put little faith in the power of legal/disciplinary system to meaningfully prevent rape, the benefit of California’s statute is that it makes it harder for the former group to excuse their actions–either to bystanders or to the community or disciplinary/legal system after the fact–and sends a clear message to the latter group that they can’t just assume they have consent if they’re uncertain. In this way, far from treating “the campus rape crisis as a communication problem” and “blur[ring] the parameters of what sexual assault is,” as Michelle Goldberg claims, the California law seeks to prevent claims of miscommunication from being used as an excuse for rape by drawing a distinct line between the actions of rapists and the rest of us.

Because, really, for the vast majority of us–the millions and millions of people who have no trouble ensuring that the people who we have sex with want to be having sex with us–how is affirmative consent not exactly what we’re doing already? Certainly, as Ann and Tara note, many of us could probably stand to more directly communicate about what we want sexually–I know I definitely could–and if this law helps fosters that, all the better. But I simply don’t believe that affirmative consent is worlds away from how most people approach sex already, as Chait claims.

Critics of using affirmative consent as the standard seem to act as though there is some other type of consent that people are actually using when they have sex. But in the absence of affirmative signs of consent, then all we’re left with is a concept of “negative consent”–an assumption that people are in a perpetual state of consenting to sex with anyone at all times unless indicated otherwise. Does Chait truly believe that this is the standard adhered to by the majority of Americans? Call me a Pollyanna, but I don’t things are that bad. And does he believe that should be the standard? If so, he would seem to be arguing not just against a standard of “affirmative consent” but against the whole shift toward defining rape by an absence of consent in general. I mean, if it’s not indicators of “affirmative consent” that people are using–usually with great success–to avoid having non-consensual sex raping people, how exactly are they doing it? Just randomly guessing about what their partners want and don’t want? Ploughing ahead doing whatever they want to do, with absolutely zero consciousness and regard for their partner’s comfort and desires, and stopping only when they hear a loud and forceful “no”?

Of course not. That’s simply not how most people have sex. The vast majority of us want to be having sex with people who want to be having sex with us, and therefore naturally, intuitively look for affirmative signs–and ask for them if need be–to determine if our partners are into it. I honestly fail to see how it is even possible to have sex in the real world with another human being without being constantly engaged in this process.

It’s true that the statute gives few examples of what affirmative consent looks like–it talks much more about what cannot be taken as an indicator of consent (”silence,” “lack of resistance,” “past sexual relations,” etc.) than what can. Indeed, it really gives no guidance on how to determine your partner’s affirmative consent at all beyond stating that “it is the responsibility of each person involved in the sexual activity to ensure that he or she has” it. Chait, and the other critics he cites, seems to believe that the “practicality” of the law is hampered by this lack of specificity. Though no doubt if the law did try to give specifics, they’d–very rightly, I think–howl that the state shouldn’t be in the business of micromanaging our sex lives.

In reality, the law is vague on this question because what, exactly, affirmative consent looks like differs according to the context, which I would think would be obvious to anyone who has ever had sex. But given the number of pieces like Chait’s that reveal a real or feigned confusion about how consent actually works in real life, I guess we need to get down to particulars. Chait himself–despite making the quite bold claim that the law would deem 90 percent of Hollywood sex scenes and “most, and possibly nearly all, sexual encounters” as rape–does not actually give any concrete examples to show how he possibly believes that to be the case. So instead I’ll go ahead and take a stab at Michelle Goldberg’s questions.

“Do moans count as consent? How about a nod, or a smile, or meaningful eye contact? If a woman performs oral sex on a man without asking him first, and if he simply lies back and lets her, has she, by the law’s definition, assaulted him?

Answer: It depends. Here’s a not-at-all-exhaustive list of questions it may depend on: Do you know your partner well enough to know that a moan absolutely means, “Yes, God, please don’t stop”? Is the moaning a response to continuing some action or initiating a new activity without asking? Was the nod in answer to a verbal question like, “Do you want me to fuck you now?” or a clear non-verbal question indicated by, say, moving as if to go down on your partner and pausing to give them a questioning look? Are you sure your partner read the question right? Are you sure you read the answer right? Was the smile a response to: “Does that feel good?” Are any of these signals contradicted by other verbal or body language cues? Is this meaningful eye contact followed by, say, your partner removing all their clothes and lying back in bed and beckoning to you? Or is it followed by your partner just lying there passively? Is this your first time hooking up with this man or do you give him a blow job every night? Do you know him well enough to how he would non-verbally indicate he wasn’t into it? Had you been pressuring him to have sex and he’d expressed reluctance before you initiated the oral sex?

I could go on like this all day and still not begin to cover every scenario because there are limits to my sexual imagination. In general, I’d say it’s a good idea to err on the side of getting verbal consent and/or multiple non-verbal cues with people you don’t know very well and when you’re initiating a new sexual activity. And of course, there is nothing to be lost–and much to be gained–by just asking if you’re unsure. But my point is that it’s impossible to judge each individual way people might indicate their consent in isolation, separate from the context–of the relationship between partners and of every single word/action/moan/hesitation/glance/etc. that preceded it and followed it. It just doesn’t make any sense to ask if a moan or a smile or nod or [INSERT ANYTHING AT ALL] counts as consent–and here I’m gonna go ahead and switch to saying “desire” because that’s what we’re actually talking about–because, in the actual, real-world practice of sex, there are no circumstances in which that would ever be your only clue that someone wanted to be having sex with you.

Chait’s refusal to understand consent/desire as this ongoing and contextual thing is perhaps why he insists that it is somehow proof of the law’s weakness that it will not be applied in cases where neither partner claims any lack of consent. Pointing to Amanda Marcotte’s point that the law only comes into play if a rape accusation is made, he claims this means “nobody will actually try to enforce it.” Of course, this makes absolutely no sense if you properly understand that the law is not broadening the definition of rape beyond lack of consent but simply changing what can(not) be used as evidence of that consent. Chait writes, “Instead, it will technically deem a large proportion of sexual encounters to be rape, but prosecutors will only enforce it if there is an accusation.” To Chait, it seems that the fact that there isn’t some abstract, “objective” definition of rape above and beyond both participants’ subjective determination that they were consenting is treated as a evidence of a flaw in the law, instead of an accurate reflection of reality. If we agree that rape requires non-consent, then, by definition, there is no “technical” rape separate from the desire of both partners.

And perhaps we don’t agree. Perhaps Chait doesn’t think the definition of rape should shift from centering on the use of force to a lack of consent. Or perhaps he thinks there’s just no practical value in legally defining rape in that way since it’s often very difficult to legally prove an absence of consent. But I’m still unclear on why an affirmative consent standard is considered any more difficult to implement than a negative one. Either way, there will always be a large number of perpetrators who claim they had consent when they didn’t–only hopefully under California’s law, they’ll have a slightly harder time getting off the hook with absurd excuses like they’d convinced an unwilling partner to “roll with it.” And there will always be a small number of people who lie about being raped–since these people are knowingly lying, I fail to see why they’d be any more likely to make false accusations just because the standard is affirmative consent.

I understand why there’s discomfort with using legal/disciplinary systems to regulate something as complex as human sexual relations. Believe me, I don’t actually want to live in this world. But rape exists and should probably be punished, and as long as we’re going to use a consent standard–which we should because it more accurately reflects the reality of how rape happens in real life–it seems to me we should use affirmative consent for the same reason. Not because it’s some aspirational departure but because it is more in line with how the vast majority of people gauge their partner’s desire in their real sex lives.

Maya Dusenbery is an Executive Director of Feministing.