Punishing even innocent human contacts.
I and my wife are happily married, and neither of us is abusive, much less criminal.
So, apparently, would any couple in America that engages in making out, without lots of explicit discussion in advance — that is, pretty much every person in America who is married or in a committed relationship. U. Va.’s policy bans a wide array of conduct that is perfectly legal under Virginia state law, and that neither involves sexual intercourse, nor occurs against anyone’s wishes. This is an outrageous invasion of students’ privacy, and an insult to U.Va. alumni and state taxpayers (like me).
U.Va. adopted its new “Interim Policy on Sexual and Gender-Based Harassment” to appease the Office for Civil Rights, where I used to work.
Under its policy, if you hug your boyfriend, and as an inevitable result your “clothed” “body parts” (such as “breasts”) touch him, you could be accused of “sexual assault” that “consists of” “sexual contact.” That’s because U.Va. now defines such touching, “however slight,” as sexual assault, lumping together both touching and intercourse as “sexual assault” when they are deemed “sexual” and occur without “affirmative consent.”
(“Affirmative consent” is a misleading term, and does not include certain types of consent that occur in the real world, and are recognized by the courts, as I explain at this link. The new policy further warns that “Relying solely on non-verbal communication before or during sexual activity can lead to misunderstanding and may result in a violation of this Policy.”
Any “intentional touching of the breasts, buttocks,” etc., is deemed “sexual contact,” as is “touching another with any of these body parts.” The relevant portions of U.Va.’s policy are reprinted at the bottom of the article at this link.).
The practical effect of the new policy is to ban making out as it is practiced by virtually all couples in the real world. U.Va.’s new policy requires “affirmative consent” (rather than “effective consent,” as it previously did) — “clear,” “active” “permission” — not just for sex, but also sexual contact, such as the touching that commonly occurs during making out and heavy petting. No one ever says things like “may I touch your breast” before doing so, especially when the touching is likely to be welcome. In the real world, these things are welcomed after they begin, not authorized or permitted in advance. But U.Va.’s policy effectively forbids ratification after the fact (i.e., making out) by banning any touching “however slight” without such authorization, so if you touch your partner an instant before they welcome it, you’ve presumably violated the policy.
It thus forbids the gradual, step-by-step escalation of intimacy without verbal discussion that is how making out actually happens in the real world. That is pointlessly intrusive. Conduct should not be banned where it was not “unwelcome,” and not against the victim’s will, since unwelcomeness is an essential element of a Title IX sexual harassment claim (U.Va.’s policy was adopted under Title IX, which the courts have interpreted as requiring that colleges not ignore sexual assaults and other behavior that constitutes unwelcome sexual harassment that is severe and pervasive. For potential legal and constitutional problems created by policies similar to U.Va.’s, see this link.)
There is no evidence that U.Va.’s policy will do anything to prevent sexual assault, or that that women want to be explicitly asked for consent at every step while making out. The “affirmative” consent requirement will not help rape victims or prevent rape, since rapes are seldom the result of mixed signals, and rapists, who already lie about whether they have committed rape, will just lie and claim the victim affirmatively consented by saying “yes” to sex. Nor do women want to constantly be asked for consent over and over again, every time intimacy deepens during making out, as many college affirmative-consent policies seem to require. At The Atlantic, Conor Friedersdorf quotes from the misadventures of a man raised by feminist parents who tried to follow “affirmative consent” in his dating relationships with women, who discovered just how much it annoyed them: “one of my first partners threw up her hands in disgust. ‘How am I supposed to get turned on when you keep asking for permission for everything like a little boy?’”
In some ways, U.Va.’s new policy echoes the controversial “affirmative-consent” law passed by California’s left-wing legislature last year, over objections from even liberal newspapers like the Los Angeles Times. Some advocates of that deeply intrusive law argued that it requires “state-mandated dirty talk,” such as forcing couples to discuss explicit sexual details (like agreeing in advance on each touching of intimate areas) during sexual encounters.
They want to require such discussion even when it would serve no useful purpose, such as where the touching is almost certain to be welcome, based on the fact that it was welcomed by the recipient in similar past circumstances. Perhaps echoing this mindset, U.Va.’s policy states that “Affirmative Consent to sexual activity on a prior occasion does not, by itself, constitute Affirmative Consent to future sexual activity,” and that “Affirmative Consent to one form of sexual activity does not, by itself, constitute Affirmative Consent to another form of sexual activity.”
For example, one advocate of “affirmative consent” endorsed expelling a male student merely for touching his partner while making out without reaching verbal agreement prior to the touching (for asking “does this feel good” while doing it, to see if she wanted him to stop, rather than saying “may I touch your breast” before doing it). That affirmative-consent advocate said that if it’s not feasible for a man to discuss every individual touching of a woman’s intimate areas in advance (as some “affirmative consent” policies literally require for a couple taking things on a step-by-step basis), he should instead seek consent from his date to a wide array of touching and licking in advance, using this disturbingly graphic example:
“Listen, I think you’re hot, I’m really attracted to you. Someday, maybe even tonight, I hope to run my hands, my mouth all over your body, over all your parts. But we might not be there yet, and I need to know that if I start to touch you in a place you’re not comfortable with, you’ll just tell me to stop, and we’ll stop immediately. You’ll feel okay, you won’t feel assaulted.”
How many women would ever want to hear something that creepy and explicit from their date? (Especially the passage in italics)? It would disturb many women, and few men could bring themselves to say something so awkward. And it would serve little purpose: There is nothing inherently bad about something merely because it occurred without advance permission (I like it when my wife or daughter suddenly hug me without asking for permission).
Requiring “affirmative consent” intrudes deeply into people’s private lives.
Ezra Klein, a former Democratic operative and leading supporter of “affirmative consent” rules, says they will define as guilty of sexual assault some people who “slip naturally from cuddling to sex” without a series of agreements in between, since the “affirmative consent” requirement
tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test.
[It] is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value….
If [it] is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it. . . . men need to feel a cold spike of fear when they begin a sexual encounter… To work, “Yes Means Yes” needs to create a world where men are afraid.
But creating a “world where men are afraid” constitutes precisely the sort of sexually hostile educational environment that Title IX and the Fourteenth Amendment forbid state officials to create. Creating an anti-male climate constitutes sexual harassment. (See, e.g., Hartman v. Pena, 914 F.Supp. 225 (N.D. Ill. 1995), a case in which a judge allowed male employees to sue over an intimidating, anti-male sexual-harassment sensitivity training seminar)).
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