On revoking affirmative consent

[CN: sexual assault talk, more graphic than previous posts]

Last week, I looked at the specific wording of a law that talks about the application of affirmative consent in Californian colleges. One part of the law deserved a post of its own:

Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.

In the last two posts I’ve deliberately kept the language gender-neutral. The assumption of rape as having a male perpetrator and female victim erases a lot of other possibilities including male victims and female defendants (see these posts for more). This is of course ironic since I’ve mostly seen the gendered assumption brought up by opponents of affirmative consent, who also often claim that proponents of it are anti-male and don’t give a shit about rape victims.

But for this example I’m going to use gendered language. Because the idea expressed in the above section of the law has resulted in one of the biggest anti-feminist boogeymen (boogeypersons?) out there. Here’s the ultimate [graphic] anti-feminist horror story. (To make it a proper anti-feminist horror story I naturally had to address it to a heterosexual cis man.)

You go on a date with an attractive woman. Everything’s going well and you ask her up to your place. She says yes. At your place, you put on the moves big-time and she responds well, agreeing to sex. The two of you begin coitusing. A few minutes later, the woman – who naturally turns out to be evil – decides to strike. She withdraws her consent, but only in her mind. She deliberately doesn’t tell you so that she could get her revenge on you later. There you are, a perfectly innocent victim who doesn’t realise they’re about to get snared by the clutches of the gynocratic legal system. Later on, you get arrested, tried and sentenced to death by a cackle of feminazis. “You should have known!” they say, while patting the woman on the back for not telling you. Rejected by society, even your grave is forgotten.

Maybe I’m exaggerating a little here but many people do seem to a big problem with the idea of withdrawing consent. Here’s one example:

Students, too, were somewhat confused. “I feel like their hearts are in the right place, but the implementation is a little too excessive,” Henry Mu, a 24-year-old biology major at California State Long Beach told the Press-Telegram. “Are there guidelines? Are we supposed to check every five minutes?” [Source]

Here’s another:

But it seems that the bill has the potential to generate much more confusion, and create many more problems than the ones it eliminates. Cynthia Garrett is an attorney who lobbied against the bill. According to her, the “revoked at any time” clause can be especially problematic: “This bill doesn’t require any protest, or a victim to say no. The consent has to be ongoing and can be revoked at any time. What if she revokes it in the middle of the act and doesn’t have to say anything—how is he supposed to know?” Most cases will be, like those of decades past, matters of “he said, she said.” What is new, however, is that the burden of proof will fall on the accused, usually a male student. It becomes his responsibility to demonstrate that he received consent, a nearly impossible feat, and without the right to the presumption of innocence afforded in criminal courts. [Source]

There are a few things going on here. The first is the actual law. Here’s the wording again:

Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.

Ignoring explicitly bad-faith criticisms and blatant rape apologia (of which there’s been heaps), there are generally two kinds of objections, both of which can be found in the quotes above:

• These laws (or this particular clause) is excessive
• These laws (or this particular clause) is vague

The first objection is against this wording, which is pretty black and white. This suggests that it supports the negation of the above statement, namely “Affirmative consent is not ongoing throughout a sexual activity and cannot be revoked at any time,” presumably after initially given. Of course seeing this wording shows that the objection comes back to very blatant rape apology; for consent to be meaningful it must be able to be withdrawn.

The second objection I take a lot more seriously, on the assumption that it’s given in good faith and not as a derailing tactic against affirmative consent laws. Which in my experience it is most of the time. More to say about “guidelines” at the end.

Now I’m no pure utilitarian. But I think it’s a sign of immense privilege and wilful blindness if your biggest problem with this part of the law is the hypothetical horror story I mentioned above. Especially when the facts on the ground show that the policy need goes the other way: people make claims and legal defences around not understanding that consent can be withdrawn. The hypothetical of the “woman who withdrew consent but chose not to communicate it” makes for excellent mental masturbation fodder for philosophy dudebros but laws need to at least pretend to be influenced by the actual reality that they operate in, no? The idea that something like this clause will “create many more problems than it eliminates” would be true if the vast majority of rape claims were lies and the vast majority of alleged victims conniving individuals set about to ruin “reputations”. Neither is remotely true and the reality is the complete opposite. Meaning if these are your grounds to object, it’s like having a problem with victims testifying because it would “create more problems than it solves because a woman could LIE and put ‘our boys’ away!”.

Which brings us back to practicality. Maybe some guidelines would be good. Maybe they would be developed as the law evolves. But ultimately there’s just no avoiding the fact that a sexual assault case must make reference to cultural norms and what is considered reasonable (just like other types of crimes but more so). The guidelines about checking in on consent, and making sure it’s reaffirmed that we might be using are what’s expected of a reasonable person. So which way from here, society? There is the possibility of a person withdrawing consent and not telling about it. Just like there is a [much higher] possibility that either party will simply perjure themselves in court, since this is most likely to be determined by testimony. This means this law has the potential for abuse – just like any other law. But since it’s not actually true that false rape accusations are an epidemic, the effect that I predict such clauses would have is making people be more mindful of checking in with partner(s) after sex is commenced. In other words, boo fucking hoo.