Defending Liberty: Essays in Honor of David Gordon

CHAPTER 8

The Anti-Liberty Requirements of Affirmative Consent

Jasmine Rae Straight

I’m on the floor, my arms around her legs, my head in her lap, and we’re both quiet. Silence. My pulse. I’m a crystal, dissolving in her, in I-330. I feel with absolute clarity the way the polished facets that define me in space are melting, melting. I’m vanishing, dissolving in her lap, in her. I’m getting smaller and smaller, and at the same time wider, larger, off every scale…. Because she…she’s no longer herself, she’s the whole universe.

—Yevgeny Zamyatin, We

The conventional wisdom that influences university policy on what is considered valid sexual consent has undergone radical change over the past twenty years. Valid consent being the criteria that makes subsequent sexual behavior morally justified because the consent is morally transformative in the way that matters. Previously, sex was considered to be consensual provided that each party had the ability, and opportunity to object, and did not do so. This view was captured in the ‘No Means No’ campaign where the lack of dissent was held to be sufficient to ground the validity of sexual consent. This is no longer the case, as the policy is thought to unfairly burden the victims of sexual assault and rape. Affirmative consent policies are now being used increasingly at universities across the country, as well as forming the basis for legislation in some U.S. states.1 University policies that define affirmative consent are varied, but policies generally require the consent to be voluntary, conscious, unambiguous, and ongoing. The consent can be communicated verbally or behaviorally as long as it is clear and continues throughout the sexual encounter.

I will outline two problematic requirements in the affirmative consent model and argue that we should reject this model of consent because of these requirements. I suggest we adopt an alternative model of consent that avoids the serious problems that these requirements present. The first requirement I will argue against is the need for the behavioral or verbal communication of sexual consent to be unambiguous in order for the consent to be valid. The second objectionable requirement is that the communication of consent must be ongoing throughout the sexual encounter. The requirement that the communication of consent be ongoing is primarily objectionable because the communication must also be unambiguous. That is, if communication of consent did not have to be unambiguous in order to be valid, it would not be as problematic for the communication of the consent to have to be continuous.2 For these reasons, most of my argument will focus on the problems presented by the requirement for an unambiguous communication of consent to sex. I will then offer some reasons in favor of returning to a lack of dissent model of sexual consent.

CONSENT AND COMMUNICATION

There are three main ontological views regarding what constitutes consent and therefore when consent is considered valid. Understanding what constitutes valid consent is critical for understanding when sex is considered consensual, as valid consent is the criterion that enables certain sexual behavior to be morally justified. The first model of consent is the mental or subjective view where a person’s mental state is necessary and sufficient for valid consent.3 Consent is the mental state, and the accompanying behavior is simply providing evidence of the consent that has already taken place. Consent is ontologically distinct from its communication—consent can occur whether it has been communicated or not.4 The second model of consent is the behavioral or performative view where communication is necessary and sufficient for consent to be valid. In this model, the communication can either be verbal or nonverbal.5 Finally, the third model is a hybrid view where a person’s mental state plus her communication of her mental state are both required for valid consent to occur.6

Affirmative consent policies look to be a variant of the behavioral model, as the focus is on clear and unambiguous communication of consent to sex. The importance of a corresponding mental state is implied by verbiage such as “voluntary” or “conscious”, so perhaps the affirmative consent model is a variant of the hybrid model. I am skeptical that this is the case given the overwhelming emphasis on the communication component in both the affirmative consent policies and the affirmative consent campaign.7 The presence of a corresponding mental state seems to be assumed to be present if communication of consent is given, but it is not explicitly required.8

The details of any given affirmative consent policy vary, but there are four consistent features of the model, which are: (1) consent must be communicated clearly or unambiguously, either verbally or behaviorally, (2) communication of consent must be ongoing throughout the sexual encounter, (3) consent must be given voluntarily, and (4) the person must be conscious. There is also a fifth feature that requires a person can also not be intoxicated as it would make it difficult to meet the first four criteria. In particular, it calls into question the person’s ability to consent voluntarily and whether she is conscious enough to give valid consent. Some of the more extreme views contend that a person cannot give valid consent if any alcohol has been consumed. I am only concerned about (1) and (2) in this paper.

THE PROBLEM OF UNAMBIGUITY

The motivation behind having communication of consent be unambiguous is to reduce confusion that can lead to harm, specifically sexual assault and rape. If communication of consent is unambiguous, then instances of sexual assault or rape resulting from misunderstandings or confusion about permissibility should be reduced or eliminated. While the focus in the affirmative consent model is on protecting potential victims of sexual assault or rape, the model could also be argued to protect both parties. If there is explicit, unambiguous communication of consent to sex, then there is no room for misunderstandings or misinterpretations, which can protect men9 from being accused of sexual assault or rape for sexual encounters they thought were mutually consented to.10 The motivation behind the unambiguity requirement is well-intentioned, but the actual enactment of it reveals why it is morally problematic to require unambiguous verbal or behavioral consent to sex. I will explore both acceptable forms of communication of consent—the verbal and the behavioral—and show why the unambiguity requirement should be rejected.

The Problem with a Requirement of Unambiguous Verbal Communication of Consent

Some college affirmative consent policies have a verbal-only requirement such that any nonverbal action or behavior, no matter how unambiguous, is insufficient to communicate valid consent.11

Valid verbal communication of consent means that a person must explicitly agree to the sexual act before the encounter takes place and must verbally agree to each new sexual activity. This means that the person initiating sexual behavior must verbally ask for consent from the other person involved in the sexual activity and she must respond verbally with her consent.12 Exceptions can be made such that gestures or safe words are deemed permissible to count as consent, but these too, must be verbally agreed to prior to the commencement of sexual activity. Verbal-only affirmative consent policies are less common than policies that allow for both verbal and behavioral consent but given that verbal-only affirmative consent policies still exist, and people are therefore subject to punishment if they are in violation of it, the requirement is worth discussing. I argue that if the affirmative consent policy requires verbal-only communication of consent, then it is a case of objectionable compelled speech.

Compelled speech is law requiring that citizens use or express certain language. One could argue that affirmative consent policies requiring verbal-only communication of consent are not law—they are just university policy, which is importantly different from law, so my compelled speech objection could not hold in instances of university policy. This is a valid concern, but it is important to note that some states have actually made the affirmative consent standard a legal requirement for universities, so in these instances, they are not just university policy—they are legally required university policy. Additionally, if we look at states where a legal standard for affirmative consent has not been adopted, the verbal-only affirmative consent policies can still be considered cases of compelled speech once one understands that university affirmative consent policies act as “university law” with its university justice system. While the university system of “law” is distinct from the system of criminal law of the wider society, it operates as a justice system of its own where individuals can accuse others, make charges against others, and be “convicted” of violations.13

A prime example of compelled speech operating in university law is the university policy requiring correct gender pronoun use. The idea that a person’s gender pronoun preference should be respected is acceptable, but the university requirement that punishes those who fail to use the correct gender pronoun, is not acceptable. The University of Minnesota has been revising a gender pronoun policy that requires the correct gender pronoun be used and failure to adhere to the policy could result in academic expulsion (for students) or termination of employment (for faculty or staff).14 These are drastic consequences for all involved. The gender pronoun requirement that the University of Minnesota is proposing requires that all members of the university community adhere to the correct gender pronoun use for each individual and failure to adhere to this requirement could lead to severe punishment. It could be argued that this is not really an instance of compelled speech, because while university members are required to use the correct pronoun, they are still able to refer to any individual by his or her name, or by referring to the individual generally, so this policy does not compel university members to use specific language in a problematic way. However, if we modify the policy to one that requires university members use the correct pronoun and only the correct pronoun, much like the verbal-only communication of consent that requires specific language be used or punishment may ensue for not obtaining valid sexual consent, then it would be a clear case of compelled speech and it would be one that I imagine almost everyone would find objectionable. Let us also imagine the modified policy comes with the same drastic consequences that the actual gender pronoun policy suggested by the University of Minnesota does. While fictitious, this modified gender pronoun policy serves to show what makes compelled speech at university so unethical. No matter how well-intentioned, a university is not meant to create policies that police and control the speech of its faculty, students, and employees. In fact, universities were designed to be an environment that fostered free speech and exchange, and up until recently, were one of the last places one would expect compelled speech to be accepted. Verbal-only communication of consent polices are instances of compelled speech similar to the modified gender pronoun policy example, because they require individuals to use or express certain language in sexual encounters, and if an individual fails to do so, they can be found in violation of the policy and face punishment, just as in the cases of the gender pronoun use policy.

So far, I have only made the case that verbal-only affirmative consent policies are actually instances of compelled speech, but it does not automatically follow from this that these policies are instances of objectionable compelled speech. The belief that compelled speech is objectionable is controversial. Some view compelled speech as somehow a greater protection of free speech by protecting underserved minorities.15 While I disagree and believe that most compelled speech is objectionable, I will not be able to provide a full defense of the broader claim in this paper. Specifically, I will argue that the verbal-only communication of consent in the affirmative consent policies is a case of objectionable compelled speech because it is an unjustified Constitutional rights restriction on an individual’s free speech protections afforded by the First Amendment. Furthermore, because compelled speech is ideologically at odds with the principles of free speech that underlie the First Amendment, it is also immoral. Therefore, solutions that propose ratifying the First Amendment to allow for compelled speech exceptions would be morally wrong, even if technically legal.

Compelled speech has been criticized for being objectionable on the grounds that compelling people’s speech is akin to compelling people’s thoughts, which undermines individual autonomy and liberty. Often, compelled speech has been struck down by the Supreme Court on grounds that it violates free speech rights afforded under the First Amendment. In West Virginia State Board of Education v. Barnette, the Supreme Court ruled that children have protection under First Amendment such that they are not required to salute the flag or recite the Pledge of Allegiance in school.16 In Rumsfeld v. Forum for Academic and Institutional Rights, Chief Justice John G. Roberts Jr. stated, “Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”17 Typically, the only restrictions permitted by the First Amendment have been those that do not defeat a central purpose of the right.18 Constitutional rights are not absolute, but restrictions cannot render the right ineffective by excluding its core exercises. It is doubtful that many would consider the ability to speak freely or to stay silent during sex specifically to be a central purpose of the right to free speech. But, surely, the core of a right to free speech must extend to one’s own bedroom. If the First Amendment cannot protect a person in the most intimate of encounters, and if we permit the government to legislate communication in the bedroom such that the right to free speech becomes inert and offers individuals no serious protection here, then surely this is a Constitutional rights restriction that cannot be justified.

Consider the following case. Imagine if, instead of the government requiring the use of specific language in sexual encounters, it forbade the use of specific language in sexual encounters. Let’s suppose that the new government policy forbids the use of the four-letter expletive beginning with the letter ‘f ‘. The justification for forbidding this word during sex is that it is a violent word, and its use can cause psychological harm to those who hear it. Anyone caught in violation of the policy could be subject to legal punishment. It is unlikely that many people would find this kind of restriction on free speech justified. Why think it should be any different if instead of forbidding certain language during sex, we require certain language? Both are instances of controlling a person’s free speech in the most intimate of encounters and both are equally objectionable because of this feature.

A final point to consider regarding the verbal-only communication of consent requirement, is that it permits other people the right to govern how individuals communicate in their own sex lives, which sets a dangerous precedent. In the name of safety and preventing serious harms, one could imagine that it would be reasonable to allow the university to govern other areas of individuals’ personal lives, such as rules governing interpersonal relationships. Surely, this is not only an undesirable result, but it is a morally unjustifiable result too.

An Objection and a Reply

A person could argue that there is a difference between an unconditional requirement, such as the requirement that all school children have to recite the Pledge of Allegiance during assembly, and a conditional requirement that is only required if a person wishes to do or obtain something, such as a police officer who can only accept her position after verbally assenting to an oath.19 It looks as though the verbal-only communication of consent requirement is a conditional requirement and conditional requirements are not typically viewed as problematic. Part of what makes compelled speech objectionable (at least in the most egregious cases) is that it is an unconditional requirement—it applies to all persons and to all instances. If this is true, then perhaps the verbal-only communication of consent requirement isn’t really a case of objectionable compelled speech.

I think the distinction between an unconditional and a conditional requirement is useful, and it is most certainly true that the most egregious cases of compelled speech are found in the cases of unconditional requirements; however, this distinction collapses in the case of verbal-only communication of consent. On the surface, it appears that this kind of consent is of the conditional variety, but I contend that there is a sense in which this kind of consent is unconditional. It is unconditional because it applies to all people who have sex; the only way to avoid compelled speech would be to abstain from sex altogether, which is completely unreasonable. The police officer who swears an oath can choose whether to become a police officer, based on the demands and expectations of the position, including the conditional requirements to obtain such a role. Whereas, in the sexual consent case, an individual’s choices, provided that she does not wish to engage in sex that is considered invalidly-consented-to, are: (1) have sex that requires compelled speech, or (2) not have sex. There is no way for a person to have sex free of compelled speech. The only way for the individual to avoid compelled speech would be to abstain from sex and that seems not only ridiculous and unfair, but also, it appears to be an unconditional requirement.20 Essentially, the verbal-only communication of consent requirement is conditional in form, but unconditional in spirit.

Perhaps the police officer case and the sex case are too importantly different in the ways in which they are conditional for this objection to be as strong as possible. Because it looks as though the police officer case is purely conditional whereas the sex case is not. By ‘purely conditional’, I mean that it is conditional in both form and spirit. It is conditional in form, because it takes the form “if x wants to be a police officer, then x must perform verbal oath.” It is conditional in spirit because it truly only does apply the conditional to those individuals who wish to become a police officer. Any individual can opt-out and the compelled speech is only required conditionally in a specific scenario. Whereas, in the sex case, it is only conditional in form—if x wants to have sex, x must verbally express her consent—but it is not conditional in spirit, because it applies to all individuals and no one can opt out of the compelled speech and still perform the action of having sex. The only way to avoid the compelled speech is to opt-out of sex.

A stronger objection would be a case that is more analogous to the sex case. Consider the following scenario. Dakota needs to have surgery on her eyes and if she does not get the surgery, she will become blind in both eyes. In order to get the surgery, Dakota must give clear verbal consent to the surgery. As with the sex case, the costs of not giving verbal consent are high. The costs to Dakota are going blind. But unlike the police officer case, the compelled speech applies to all people who would wish to have this surgery. This example takes the conditional form, if x doesn’t give her verbal consent to the eyesight surgery, then x will not be able to get the surgery, but, similar to the sex case, it is unconditional in spirit because no one can optout of the verbal requirement and still have eyesight surgery.21 The verbal requirement of consent in the eyesight case isn’t objectionable though. Most people would agree that it would morally be impermissible for the surgeon to perform the surgery without Dakota’s verbal consent. If this is true, then why wouldn’t it also be morally impermissible to engage in sex without verbal consent. Perhaps it is just the case that there are certain hybrid-conditional requirements where the compelled speech isn’t objectionable. While the eyesight case and the sex case are analogous in that they are both conditional in form and unconditional in spirit, they share an important difference that elucidates why it isn’t objectionable compelled speech in the eyesight case, but it is in the sex case.

The difference is related to the degree of risk. The standard of consent is warranted in the eyesight case because surgery comes with risks that we don’t think a surgeon can assume a patient is willing to take. Most surgeries come with the risk of death or significant complications specific to that surgery, so even though the cost of staying silent and therefore not getting the surgery in the eyesight case is high, we accept that verbal consent needs to be acquired because it would be unacceptable to put the patient at risk of death or significant injury as a result of a surgery performed without her consent. Additionally, there is an epistemic asymmetry between the doctor and the patient pertaining to the knowledge of the degree of risk. The patient is usually dependent on the doctor to provide the relevant information about the risks of surgery. She is not privy to this information on her own. This is important because the attainment of verbal consent indicates that the patient has been given this critical information by the doctor—it communicates that this transfer of information has taken place. There is also the additional consideration that the person having the surgery is assuming significant financial obligations that could impact her life for years to come and again, we don’t think the surgeon is able to assume an individual is willing to take on these financial obligations unless she has verbally consented.22

We accept the requirement of verbal consent given the high risks involved with the subsequent action (in this case, surgery). These risks are so high that we accept the high costs of not performing the subsequent action without the verbal consent. The compelled speech is not objectionable, because the consequences of not requiring it are unacceptable. This is not true with the sex case.

In the sex case, the degree of risk is arguably lower, and the risk level is certainly too low to justify the high cost of requiring people to abstain from sex absent verbal-only consent. While the risk of imminent death is a possibility when engaging in sex, it certainly is not a risk in most cases. The risk of imminent death would most commonly be attributed to murder, usually following a rape, where an individual has intentionally committed murder. The death is not a complication of surgery or negligence, both of which are unintentional. The reason this is important is because if an individual is willing to commit murder, then he is already willing to commit an act against someone else’s will. Lack of verbal consent to sex is not going to be a difference-maker. There is also the risk of death that is not imminent, such as death resulting from a sexually transmitted disease. This risk is undoubtedly higher than the risk of imminent death from murder, but it is also relatively easy to reduce by using contraception. Also, I think it is generally true that most people do not think of themselves as risking the possibility of death when they engage in sex.

But maybe it is not fair to focus on the risk of death when comparing the degree of risk because there are greater risks involved with sex that are more important. Maybe some of these risks are high enough to tip the scale? Undoubtedly, one of the greatest risks in engaging in sex is being forced to perform a sexual act against one’s will. In fact, this is the very harm that verbal-only consent policies aim to prevent. But the risk of this occurring absent verbal-only consent is not high enough to justify the compelled speech.

I think the only real option that avoids requiring individuals perform objectionable compelled speech in order to have sex is to implement a policy that requires all sexual behavior stops at the first expression or sign of dissent. An expression of dissent is often less ambiguous by its very nature, but more importantly, it completely avoids the charge of compelled speech.23 A requirement that sexual activity ceases once one person has expressed her dissent is simply an acknowledgement that she has withdrawn her consent and she is no longer a willing participant. I offer more reasons in support of this criterion later in this paper.

The Problem with a Requirement of Unambiguous Behavioral Communication of Consent

Requiring unambiguous behavior to communicate consent in a sexual encounter is unrealistic and disrupts the process of sexual discovery. What behaviors would count as valid tokens of consent to sex? While there are undoubtedly some behaviors that could be agreed upon, it would be extremely difficult to catalog an exhaustive list of behaviors that would constitute unambiguous behavioral consent. It is not clear what would happen to the outlier behaviors. This requirement calls for conformity in sexual behavior that impedes an individual’s ability to express themselves freely during sexual encounters. In order for an individual to be certain that they are displaying unambiguous behavior sufficient to count as valid consent, she would need to not only be aware of what behaviors count, but she would also have to be sure that she performed this behavior before sex could commence (or continue).24 This would require her to disengage from the sexual experience, even if only for a moment, in order to note to herself that she needs to perform the requisite behavior. The requirement for unambiguous behavioral communication of consent also disrupts sexual discovery by requiring one bring herself out of the sensory experience.25 The sexual experience has been modified for her by having to conform to external rules of sexual conduct. I think that this is objectionable. Studies show that cognitive interference during sex can lead to negative emotional state, which can inhibit sexual arousal and orgasm.26 A phenomenon called ‘spectatoring’ has been used to describe individuals who are so focused on their own sexual performance during sex that they fail to become immersed in the experience.27 I think it is reasonable to believe that requiring individuals to disengage from the sensory experience of sex in order to give “clear” behavioral consent would result in spectatoring.

Furthermore, cognitive distraction is a problem for pleasurable sex and women are especially prone to being distracted.28 If women are frequently mentally distracted during sex, then it might be difficult for them to provide unambiguous behavior of the kind that affirmative consent policies require (not to mention the fact that this unambiguous behavior would need to be ongoing, but I address this requirement later in the paper). Remedies such as mindfulness training have been suggested to help with cognitive distraction during sex and the remedies have emphasized increased focus on sexual stimuli and decreased attention on non-sexual thoughts.29

More Objections and Replies

It could be argued that I’m focusing on areas of lesser importance—people’s sexual pleasure and the value of sexual discovery—over something of much greater importance, which is whether sex has been validly consented to. I could even be accused of being insensitive in this regard, because victims of rape or sexual assault have been subjected to someone else’s prioritization of their own sexual pleasure. I grant that being able to deduce when valid consent has been given to sex is more important than whether a person is able to attain an orgasm or discover a new part of her sexuality, but I also think this objection misunderstands my argument. I am not arguing that a person should be free to seek sexual pleasure and discovery without any regard to whether the sex he is having is validly consented to. I am arguing that by requiring the behavior be unambiguous, that is, not open to more than one interpretation, affirmative consent policies are disrupting an important life good for many people.

A requirement of unambiguous behavior sufficient to count as valid consent to sex is also extremely difficult to prove.30 In fact, the difficulty in proving that a sexual partner has validly consented has given rise to sexual consent apps that allow individuals engaging in sex to gain consent via the app.31 One app aims to provide users with a legal contract to sexual activity that would allow for breaches of contract to be permissible.32 Not only do these apps strike me as difficult to legally enforce as a valid sexual contract, but they are certainly an invasion of privacy. A user has to explicitly specify sexual behavior that they consent to, which presumably stays logged in the app. Having one’s sexual preferences, permissions, and partners logged in an app is extremely invasive and risky. It is not difficult to see the kind of problems that could arise in people’s lives if this information were accessible by other people. Additionally, it sets a dangerous precedent that interpersonal relationships cannot simply occur naturally, but instead require contractual agreements. Not only does this seem damaging for each individual sexual encounter, but over time, it seems that it would erode trust and people’s ability to read interpersonal behavior.

Fortunately, there is a way out of this problem that still acknowledges the importance of valid consent but does not require sexual conformity and does not interrupt sexual discovery. The solution is, as mentioned earlier in this paper is to implement a policy that requires all sexual behavior cease the moment dissent is expressed (verbally or behaviorally). A sexual consent policy with a firm requirement that sexual activity stop at the first sign or expression of dissent, is more respectful of the nuances of sexual behavior as it allows for individuals to enjoy sexual discovery with one another. It also avoids the pitfalls that come with the contractual approach the affirmative consent model promotes with sexual consent apps. I will elaborate on this approach later in this paper.

THE ROOTS OF THE ONGOING COMMUNICATION OF CONSENT REQUIREMENT

Affirmative consent policies all require that the communication of consent be ongoing throughout the sexual encounter. One instance of valid consent to a particular sexual act does not entail consent to any future sexual acts. The ongoing requirement is in conjunction with the requirement that the communication of the consent be unambiguous. My issue with the ongoing requirement is largely conditional. I am chiefly concerned with this requirement because the ongoing communication of consent that is required must also be unambiguous and given the reasons that I outlined earlier in this paper; I think this is a major problem.

The ongoing communication of consent requirement has roots in Lois Pineau’s Communicative Sexuality (CS) model.33 Pineau states that her CS model is based on the idea that sex should be mutually beneficial, and that communication of consent should be required throughout the encounter. Pineau takes issue with the contract model of consent, specifically that there is point in the sexual interaction where the two parties agree to the terms, and follow through on those terms, is required. Consent is considered established from the point of agreement, unless there is a “vigorous act of refusal”34, and one person can enforce the other as per the “terms of that contract.”35 Pineau wants to provide an alternative to the contract model and her goal is to ground the criterion of consent in what is considered ‘reasonable’ from the women’s point of view. She states that men have an obligation to, (1) ensure the sexual encounter is mutually enjoyable36, or (2) to know why the woman would want to continue despite her lack of enjoyment.37 In her CS model, communication of consent is akin to a proper conversation—a give and take, as opposed to lectures, interrogations, or diatribes, which have unidirectional flow.

A flaw in Pineau’s analogy is that contracts are intended to be mutually beneficial agreements, or at least mutually agreeable terms, not a one-way forceful agreement. In a contract, the terms are fully considered by both parties and both parties only enter into the agreement of their own volition. If they are not entered into voluntarily, the contract is considered invalid. Contracts also have the feature of clauses that would permit a person to cancel the contract, with or without penalties (again that both parties agree to). For these reasons, I am not convinced that Pineau’s condemnation of the contract model of consent is justified or as strong as Pineau thinks it is. Her motivation in criticizing the contract model of consent is to prevent anyone, including the state, from forcing a woman to continue with sex if she does not wish to. I am confident that she would not approve of the sexual consent apps that have been generated in response to the affirmative consent movement. But I am not convinced that anyone is making the argument that once the “terms” of sex are agreed to, the woman can be forced to follow through, although I accept that part of Pineau’s concern is that these expectations lie implicit in some cultural norms. I think the more likely interpretation of the contractual model of consent is that the sexual “contract” permits free sexual exploration up until the point that a person expresses her dissent. The expression of dissent is the withdrawal of the previously granted valid consent and once the dissent is expressed, the sexual exploration must cease. Sex may continue once both parties are on the same page, but I don’t believe anyone is advocating that once a person has validly consented to such terms, no amount of dissent is sufficient to count as withdrawal of consent.

Additionally, Pineau’s CS model seems to support that only certain kinds of sex could be validly consented to, because only certain kinds of sex are reasonable for a woman to consent to. The argument looks like this:

1. Sexologists show that women derive little pleasure from aggressive, noncommunicative sex.
2. It is unreasonable to think that women will consent to things that don’t stand much chance of bringing them pleasure.
3. Therefore, it isn’t reasonable for women to consent to aggressive, noncommunicative sex.

The second premise seems false. Women consent to things that do not bring them much pleasure frequently, but yield greater rewards, such as childbirth, sex for procreation’s sake, or even simply wanting to please their partner. Also, I am not convinced the first premise is true either, but I think part of the difficulty in establishing the first premise would be to have a clear understanding of what constitutes ‘aggressive’ or ‘noncommunicative’ sex. Given the large amount of concept creep38 occurring, we should be weary of assuming that there is one, unambiguous way of understanding the kind of sex Pineau is talking about. This understanding of what is and is not reasonable for a woman to consent to paves the way for Pineau to claim that if her CS model is not occurring, then there are grounds for believing sex was not consensual.39 Essentially, if there was not ongoing communication of consent, then consent did not occur.

The Problem with a Requirement of Ongoing Communication of Consent

The ongoing communication of consent requirement acts as a back-up to the unambiguity requirement in the affirmative consent model and this is why it is objectionable when tied to the unambiguity requirement. First, an individual must unambiguously consent to sex, then she must continually communicate this consent unambiguously throughout the sexual experience, thus solidifying the unambiguity of the consent. When the ongoing communication of consent requirement is conjoined with the unambiguity requirement, it is an unjustifiable intrusion into people’s privacy in their sexual experiences, as it disrupts the flow of sexual experience by dictating specific conditions of the sexual encounter. It also disrupts the process of sexual discovery by requiring cognitive interference and distraction, which as I discussed earlier in this paper, leads to unpleasurable sex, especially for women. In some sense, the ongoing requirement also rules out certain kinds of sex which some people might find enjoyable. Certain fantasies and role-plays would not be permissible on the grounds that they were not properly consented to. Lastly, studies show that students do not really recall explicitly consenting to or continuing to consent to sex, often stating, “it just happened.”40 In fact, researchers state the following on sexual consent at universities:

One of the main early finding of the students’ contributions is that consent is a (sometimes intentionally) vague process. It rarely manifests as overt or enthusiastic consent, despite efforts by college administration to encourage or require it. While most of the respondents in our first study were generally clear in their negative response to sexual solicitations, rarely did they report providing an affirmative, “Yes, I’d like to have sex” to a sexual solicitation, or giving what would be considered “enthusiastic consent.”41

Not only do students not procure unambiguous, affirmative consent before sex takes place, but they also are not “updating” this consent throughout the sexual experience. They certainly are not providing ongoing unambiguous consent.

If individuals were not required to provide unambiguous behavioral or verbal communication of consent to sex, it would not be as problematic to require that the consent be ongoing throughout the sexual experience. The ongoing requirement amplifies the problems of the unambiguity requirement I detailed earlier in this paper. If the ongoing requirement was tied to more ambiguous behavioral or verbal communication of consent, then it would not be problematic to require that it continue to occur throughout the sexual experience.42 Especially if it was in conjunction with a continual readiness to stop at the first sign of dissent. The requirement that both individuals who engage in sex be continually ready to stop sexual activity at the first expression of dissent is not objectionable, and it also seems to be closer to the actual social norms of young adults, and society in general. In a study on the sexual communication of young adults, results showed that their communication does not include affirmative consent, but instead, young adults (and presumably, the rest of society) use a lack of resistance to gauge sexual consent.43 This provides some evidence that a requirement for ongoing readiness to stop at the first sign of dissent would be supported by the very people that affirmative consent policies are trying to help.

Additionally, it doesn’t appear as though the implementation of the affirmative consent standard has resulted in less sexual assault or rape. California experienced an increase in rape after the introduction of SB-967—the 2014 state law requiring that Californian universities be required to use affirmative consent for sexual consent.44 In 2014, the number of rapes, including attempted rapes, was 9397.45 The number of rapes increased to 12,793 in 2015.46 That is a 36% increase within one year. The number of rapes has increased in California each year, up until 2019, where it decreased slightly, although the 2019 figure still remains significantly higher than the pre-2014 figures.47

A RETURN TO DISSENT

I would like to suggest that we return to a lack of dissent as the criterion for valid sexual consent. I will not be able to provide a robust defense of this claim, as it would go beyond the scope of this paper. But what I hope to provide are strong reasons to believe that using a lack of dissent model will not only avoid the problems that I have argued affirmative consent policies produce, but it also does a superior job of respecting individual liberty.

By ‘dissent’ I mean the verbal or behavioral expression of non-agreement. In the context of sexual relations, this would mean the verbal or behavioral expression that the individual no longer agrees to the sexual encounter that is taking place.48 The working assumption of this model is that people typically express that they don’t want to have sex before they are actually having sex.49

Perhaps the problem is that this assumption is false. People don’t express dissent before being in a sexual act that they don’t want to be in. In fact, part of the motivation for an affirmative consent model is to protect these people, who end up becoming victims of unwanted sexual activity. My response to this claim is that it appears to be a claim about mental states. Mental states are difficult to accurately gain access to, especially since they are often asked about in retrospect, and in cases of sexual activity, there are often many subsequent mental states that play a role in the individual’s feeling about the encounter.50 But beyond the matter of whether we can reliably obtain accurate data on people’s mental states, is the question that if this assumption isn’t true, what assumption about human behavior in sexual situations is true? The affirmative consent model of consent appears to assume that people wish to dissent, but they are not capable or willing to communicate it, and therefore, they are waiting for someone to ask them, so that they have then been given the opportunity to say no. This would equate to believing that adults lack the agency to say no of their own volition. This seems to be infantilizing adults. A sexual consent policy that doesn’t respect rational51 adults’ agency consequentially violates their freedom. Just as individuals have the capability to express their desire to engage in sex, they have the capability to express their dissent to engage in sex also. To treat adults as if they incapable of expressing their own will during a sexual encounter, to the point that there is a policy legally requiring both parties to be forced into specific communication about their own sexual behavior, is an absolute violation of their individual freedom.

Another benefit of the lack of dissent criterion is that the chances of unjustly punishing innocent people52 is far lower. The recent move to a policy of affirmative consent has left many individuals unjustly accused of sexual assault or rape with their lives devastated by the accusation.53 It is difficult to obtain accurate statistics on false accusations of sexual assault or rape, as many of these occur on college campuses.54 According to the FBI, the “unfounded” rate, which is defined as the “percentage of complaints determined through investigation to be false, is higher for forcible rape than for any other Index crime. Eight percent of forcible rape complaints in 1996 were “unfounded,” while the average for all Index crimes was 2 percent.”55 A popular view on false accusations of rape and sexual assault appears to be that (1) the men who are falsely accused are rarely convicted or serve jail time, and (2) the underreported rapes and sexual assaults far outweigh the false accusations.56 But even if it is true that falsely accused men rarely get convicted or serve jail time, this fails to capture the utter devastation that a false accusation can have on the individual’s life. Men who are falsely accused of rape or sexual assault are often expelled from the university or fired from their job, their family and friends are harmed in the process by either being subjected to ridicule or hate, or by experiencing doubt about the veracity of the allegation, and they have their reputations destroyed, because even when the allegation is proven to be false, a thick cloak of mistrust surrounds the verdict, with many people believing that the man accused is guilty.57 False accusations seem to be a natural by-product of the affirmative consent model of sexual consent, because the policies typically promote the idea that any accusation should be met with belief that the accuser is telling the truth. For example, the University of Colorado, Boulder website states that in an effort to change society’s attitude towards victims of sexual assault, we should start by, “telling survivors we Believe Them.”58 While it is certainly noble to treat any person who claims to have been the victim of a crime with the benefit of the doubt, what about the person who has been accused? The standard of innocent until proven guilty appears to have vanished in the wake of affirmative consent. The default now appears to be to believe the victim no matter what. But surely we can find a way to validate the alleged victim’s feelings while pursuing evidence in search of the truth. A basic tenet of justice is to treat all equally before the law.59 Unfortunately, the affirmative consent standard incentivizes valuing some individuals over others before the law, and as a consequence, many individuals suffer injustice.

CONCLUDING REMARKS

The affirmative consent model is designed with the hopes of preventing any kind of miscommunication regarding sexual consent with the goal of reducing sexual assault and rape that result from such miscommunication. But the reality is that the current affirmative consent model is an artificial requirement that is out of touch with the social norms and expectations of sexual behavior for young adults. The requirement for unambiguity shows us how impractical and immoral it is to require unambiguous communication of consent in sexual encounters.

I believe the alternative model of sexual consent I have suggested prioritizes valid consent without mandating a requirement of unambiguous behavioral communication of consent that is impossible to catalog, intrudes on people’s sexual freedom, and is difficult to prove without serious privacy invasions. It also avoids compelling people’s speech in an objectionable way. The current affirmative consent model should be rejected and replaced with a model of consent that holds the lack of dissent as sufficient to ground valid sexual consent. Obviously, more work would need to be done to detail the particulars of such a model, but I hope that what I have sketched in this paper can provide a valuable first step towards that end.

1California was the first state to adopt legislation that required universities use the affirmative consent standard in 2014. See SB-967 Student safety: sexual assault., Pub. L. No. 967. 2014. http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967.

Other states have followed suit or are in process of adopting a similar standard. For an updated list of legal progress in each state see “Affirmative Consent Laws (Yes Means Yes) State by State,” AffirmativeConsent.com, accessed Oct 15, 2020, http://affirmativeconsent.com/affirmative-consent-laws-state-by-state/.

2The ongoing requirement might still present problems for the affirmative consent model independently of the unambiguity, but those problems are not as severe if the unambiguity requirement is dropped, and they will not be the focus of this paper.

3This might sometimes be called the attitudinal view. There are nuances within the mental view. Heid Hurd thinks the person’s mental state is based in intentionality. Peter Weston thinks the mental state is based in acquiescing. Larry Alexander thinks the mental state is based in one waiving her right (Alexander believes his view is appropriately weaker than Hurd’s but stronger than Weston’s). Larry Alexander, “The Ontology of Consent,” Analytic Philosophy 55, no. 1 (2014): 102–113.

4Alexander, “Ontology,” 106.

5Proponents of this view include A. John Simmons and Alan Wertheimer. A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979); Alan Wertheimer, Consent to Sexual Relations (New York: Cambridge University Press, 2003).

6See Emily Sherwin, “Infelicitous Sex,” Legal Theory 2 (1996): 209–231; Richard Healey. 2015, “The Ontology of Consent: A Reply to Alexander,” Analytic Philosophy 56, no. 4 (2015): 354–363; Douglas Husak, “The Complete Guide to Consent to Sex: Alan Wertheimer’s Consent to Sexual Relations,” Law and Philosophy 25 (2006): 267–287; Tom Dougherty thinks that his “duty of due diligence” can improve the epistemic access one requires without having to embrace the behavioral view. Tom Dougherty, “Affirmative Consent and Due Diligence,” Philosophy & Public Affairs 46, no. 1 (2018): 102.

7See instructional videos available online at http://affirmativeconsent.com/how-do-you-ask-for-consent/?hvid=3vSWGR. The University of Colorado, Boulder’s sexual consent policy states that, “Consent must include words or actions that create mutually understandable, clear permission conveying acceptance of the conditions of the sexual activity and willingness to engage in the sexual activity” (emphasis added). (See “Understanding Affirmative Consent,” Office of Institutional Equity and Compliance, University of Colorado Boulder, accessed Sep 3, 2020, https://www.colorado.edu/oiec/policies/sexual-misconduct-intimate-partner-abuse-stalking-policy/understanding-affirmative-consent.) The California Senate Bill 967 states,

‘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.

Also, the law states that consent cannot be valid if, according to 4(C), “The complainant was unable to communicate due to a mental or physical condition.” While the lack of communication is tied to a mental or physical condition that prevents the communication, it is reasonable to assume that the law would not find a mental state alone sufficient, nor would the law likely find that the corresponding mental state needed to match the communication in order for the consent to be valid. The emphasis is on communication with the assumption that the communication matches the mental state.

8Excluding cases where an individual is intoxicated or not of sound mind. In these cases, no matter what communication of consent is provided, it is considered invalid. This poses an interesting and troubling problem for drunken sexual encounters, as the affirmative consent model states that sex while intoxicated cannot be validly-consented-to sex. This doesn’t seem right, but it is outside of the scope of this paper for me to investigate it further.

9I understand that men can be the victim of sexual assault or rape and not just the (possible) perpetrators of such crimes, but for the purposes of this paper I will be assuming that women are more often victims of rape and men are more often the perpetrators. While the arguments will be framed using this assumption, all arguments can be applied to either sex in either role.

10The National Sexual Violence Resource Center states that studies support that an estimated 2% to 10% of reports are false. (“False Reporting Overview,” National Sexual Violence Resource Center, 2012, https://www.nsvrc.org/sites/default/files/2012-03/Publications_NSVRC_Overview_False-Reporting.pdf.

However, these numbers only capture those instances where a claim was investigated and refuted by the police. The reality is that no one knows exactly how many rape allegations are false. Cathy Young states that, “Many other complaints are left unresolved, ending in dismissal or acquittal even if an arrest is made; surely at least some of these cases involve wrongful accusations. And none of these statistics include informal accusations made in the media or in the political arena, or accusations made years after the alleged crime when memories may be altered and reconstructed.” (Cathy Young, “A step forward for victims of assault,” Newsday, Oct 2, 2018, https://www.newsday.com/opinion/columnists/cathy-young/a-step-forward-for-victims-of-assault-1.21348036.)

11The exception would be if both parties explicitly and verbally agreed beforehand that those behaviors counted as communication of consent. In Anitoch College’s Sexual Offense Prevention Policy, it states, “Use of agreed upon forms of communication such as gestures or safe words is acceptable but must be discussed and verbally agreed to by all parties before sexual activity occurs.” (“Sexual Offense Prevention Policy (SOPP) Revised,” Anitoch College, Apr 20, 2016, https://antiochcollege.edu/campus-life/sexual-offense-prevention-policy-title-ix/.)

12See Anitoch’s policy for example of these conditions (The person who initiates sexual conduct is responsible for verbally asking for the “consent” of individual(s) involved. The person with whom sexual conduct is initiated must verbally express “consent” or lack of “consent.” Each new level of sexual activity requires consent.) (Anitoch 2016) Additionally, for simplicity’s sake, I will be speaking of sex between two parties, but my arguments and discussion apply equally to sex between more than two people.

13The following distinctions between the university justice system and the criminal justice system were made by Michael Huemer in a private communication on 2 July 2017. The university justice system is inferior to the criminal justice system, as convictions of guilt only require a preponderance of the evidence, the trial is performed in secret, and evidence is not provided to the accused ahead of time. Additionally, there is a perverse incentive structure where (1) individuals that make accusations are protected from retaliation even if the accusations are false, which incentivizes individuals to make “risk-free” accusations, and (2) if those who are accused are not convicted, the university is at risk of losing federal funding.

14See draft of policy available online (“Equity and Access: Gender Identity, Gender Expression, Names and Pronouns (Draft),” University of Minnesota, accessed Aug 17, 2020, https://www.documentcloud.org/documents/4598811-Updated-Draft-Gender-Identity-Policy.html.) Policy states, “Discrimination or harassment based on gender identity or gender expression may result in appropriate responsive action, including but not limited to disciplinary action up to and including termination from employment and academic sanctions up to and including academic expulsion.”

15See the response to the 2016 Jordan Peterson case on transgender pronouns. Peterson argued against a law requiring the use of transgender pronouns, stating that it was objectionable compelled speech, but opponents stated that the laws were there to protect those who were getting misgendered.

16West Virginia State Board of Education v. Barnette (319 U.S. 624 [1943]).

17Rumsfeld v. Forum for Academic and Institutional Rights (547 U.S. 47 [2006]).

18I have presented this argument in another paper, see Jasmine Rae Straight, “The Right to Self-Defense Against the State,” Philosophia (2020), https://doi.org/10.1007/s11406-020-00212-7.

19I am grateful to David Boonin for bringing up this objection and important distinction.

20A person could try and extend my basic argument and say that the requirement for the police officer could be considered to be unconditional in this sense to, because the only way for the individual to become a police officer is under conditions of compelled speech. There is no way for the individual to become a police officer without compelled speech. But this is surely not the same as the sexual consent case. It isn’t unreasonable for positions, especially those with such a high degree of danger, risk, and responsibility, to require that individuals take an oath understanding their rights and responsibilities. A person does not have to become a police officer. It is unreasonable to require specific verbal behavior in order to engage in sex. Sex is an important life good (some would even argue it is a basic need) for many people for many reasons (reproduction being one of them). Being a police officer is not.

21I’m assuming that the eyesight surgery case could be broadened to include all surgeries.

22Someone could object that healthcare costs are particularly opaque, and people rarely understand the detail of financial obligations. While this is possibly true, it doesn’t change the fact that cost of surgery is a factor and plenty of people do consider financial obligation before they get surgery.

23I would like to thank a reviewer whose comments helped improve and clarify this point.

24In this context, ‘commence’ refers to each new sex act and ‘continue’ refers to the entire sexual experience.

25Part of the joy of engaging in sex is discovering new pleasures, which require an individual to engage in sexual behavior that is completely new. At best, an individual could offer consent to exploration, but she cannot give unambiguous consent to an act that she doesn’t know is going to occur and/or is not sure she will like, but that doesn’t mean she is not willing to engage in the behavior to find out.

26Natalie L. Dove and Michael W. Wiederman, “Cognitive Distraction and Women’s Sexual Functioning,” Journal of Sex & Marital Therapy 26 (2000): 68.

27W. H. Masters and V. E. Johnson, Human Sexual Inadequacy (Boston: Little, Brown & Co, 1970).

28Hannah Gale lists 31 things that women have thought about during sex. Hannah Gale, “31 things all women have thought about during sex at one time or another…,” Associated Newspapers Limited, May 29, 2014, https://metro.co.uk/2014/05/29/31-things-all-women-have-thought-about-during-sex-at-one-time-or-another-4741169/.

29M. Géonet, P. De Sutter and E. Zech, “Cognitive factors in women hypoactive sexual desire disorder,” Sexologies 22 (2013): e9-e15.

30See article by Ashe Schow (2014) for one reporter’s experience trying to get legal clarity on how a person would prove they received sexual consent under affirmative consent policies. Ashe Schow, “How can those accused of sexual assault prove consent under ‘yes means yes’?,” The Washington Examiner, Dec 19, 2014, https://www.washingtonexaminer.com/how-can-those-accused-of-sexual-assault-prove-consent-under-yes-means-yes.

31Steven Petrow, “People are talking about sexual consent. Would an app help?,” USA Today, Feb 20, 2018, https://www.usatoday.com/story/tech/columnist/2018/02/20/sexual-consent-apps-set-rules-intimacy-come-their-own-risks/328635002/.

32See app LegalFling at https://legalfling.io.

33Lois Pineau, “Date Rape: A Feminist Analysis,” Law and Philosophy 8, no. 2 (1989): 217–243.

34Ibid., 233.

35Ibid., 227.

36This seems to imply that a women’s enjoyment is dependent on the man.

37Pineau, “Date Rape,” 234.

38See Lukianoff and Haidt for a discussion of the impact that ‘concept creep’ is having on the college campuses in the U.S., Greg Lukianoff and Jonathan Haidt, The Coddling of the American Mind (New York: Penguin Press, 2018).

39For Pineau, it is the man’s job to ensure he is meeting this condition and if he doesn’t, we should assume he is acting out of either reckless disregard, or willful ignorance.

40Jake New, “‘It Just Happened,’” Inside Higher Ed, Aug 2, 2016, https://www.insidehighered.com/news/2016/08/02/researchers-say-many-students-still-struggle-affirmative-consent.

41J. Laker and E. Boas, “Compliance is simple, Consent Stories are complex: Building capacity for sexual agency as a prevention strategy,” Journal of Campus Title IX Compliance and Best Practices 1 (2015): 25.

42Surely, this is how a majority of people behave when engaged in sexual activity—they interpret the other person’s body language in conjunction with verbal cues as the sexual experience continues.

43Annika M. Johnson and Stephanie M. Hoover, “The Potential of Sexual Consent Interventions on College Campuses: A Literature Review on the Barriers to Establishing Affirmative Sexual Consent,” PURE Insights 4, article 5 (2015), https://digitalcommons.wou.edu/pure/vol4/iss1/5.

44“Note: In 2014, the crime of “forcible rape” was changed to “rape.” The definition was expanded to include both male and female victims and reflects the various forms of sexual penetration understood to be rape” (Crime in California 2015,” California Department of Justice, accessed Oct 14, 2020: 9, https://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd15/cd15.pdf.). This definitional change surely accounts for some of the increase, but I am skeptical that it is all that could explain the increase.

45“Crimes & Clearances Counties: All. Years: 2010 – 2019,” State of California Department of Justice, accessed Nov 1, 2020, https://openjustice.doj.ca.gov/exploration/crime-statistics/crimes-clearances.

46Ibid.

47Ibid. The number of rapes in California in 2019 was 14,720. It was 15,500 in 2018, 14724 in 2017, and 13,695 in 2016.

48Where sexual “encounter” includes either the entire sexual experience, or just a subset of sexual experience within the whole. For example, an individual may be willing to continue to engage in sexual intercourse but does not wish to engage in oral sex.

49The same assumption applies to any sexual act, not just sexual intercourse.

50There are many stories where a person was willing to engage in sex, but that person later regrets it. A common situation is where an individual has just ended a relationship with one person and becomes single, engaging in sex with other people whom they regret having sex with.

51I set aside the difficult questions and issues surrounding sexual consent for adults with impaired cognitive capabilities. When I refer to ‘adults’, I am referring to a person over the age of 18 with normal mental functioning.

52I state people, but in a majority of cases, it is men who are accused of sexual misconduct, or rape.

53See one instance of a false accusation in the following story: Emily Yoffe, “The Uncomfortable Truth About Campus Rape Policy,” The Atlantic, Sep 6, 2017, https://www.theatlantic.com/education/archive/2017/09/the-uncomfortable-truth-about-campus-rape-policy/538974/. There are many other similar stories, but it is difficult to find accurate statistics on false accusations of rape and sexual assault. Although as mentioned previously, estimates appear to be in the 2-10% range.

54See footnote 10 on this issue.

55“Crime Index Offenses Reported,” Federal Bureau of Investigation, accessed Sep 17, 2020: 24, https://ucr.fbi.gov/crime-in-the-u.s/1996/96sec2.pdf.

56Katty Kay, “The truth about false assault accusations by women,” BBC News, Sep 18, 2018, https://www.bbc.com/news/world-us-canada-45565684.

57This is often a result of the “if there is smoke, then there must be fire” mentality.

58Emphasis in original. “5 Things to Know about Campus Sexual Assault,” University of Colorado, Boulder, accessed Nov 3, 2020, https://www.colorado.edu/wgst/2019/02/21/5-things-know-about-campus-sexual-assault.

59The words, “Equal Justice Under Law”, appear on the West side of the U.S. Supreme Court building. “Building Features,” Supreme Court of the United States, accessed Oct 4, 2020, https://www.supremecourt.gov/about/buildingfeatures.aspx.