I have long been in favor of teaching young people, and strictly enforcing in sexual situations, the old rule, "Yes means yes; No means no; and Maybe emphatically means no more than maybe."
I also remain convinced that we ordinarily should not insist "that people engaging in sex should ask permission for each stage of the encounter — each 'base' in the sports metaphor." After the initial Yes most couples can get along on body language and monosyllabics like No, Stop, or Oh, yeah!" (for two monosyllables).
This issue has become immediate for me because two California politicians I like and respect (and to whose campaigns I've contributed money) are pressing for requiring California colleges to require "affirmative consent" at each stage of a sexual encounter; and the story on the latest round of their campaign for a State mandate was headlined in my local paper, "Better response urged for assault," with a subhead in a much less emphatic font, "Colleges need improvement against sexual battery …" (Ventura County Star 18 April 2015: 2A). Additionally, this movement for affirmative consent fits in with serious alarm over sexual offenses at colleges — and similar legislation will be coming soon to other legislative bodies.
My concerns with the issue come from having spent a lifetime in America with a large portion of it on college campuses — thirty-five years teaching full time — and significant time helping to write student conduct regulations.
Having grown up in America, I'm concerned with what matters and who matters. Sexual assault and sexual battery are serious issues, but so are nonsexual assault, battery, and what is still called at law "mayhem." We've seen over the last decade far too many expressions of distress over sexual exploitation and what was once called "white slavery" — by people who are not generally concerned with exploitation more generally. Similarly, I understand the need for politicians to go with politically "sexy" issues and how "politically sexy" frequently means issues relating to sex. And I understand how the American public and media have, as the saying goes, the attention spans of beagle pups and that politicians have to work with issues that grab attention and work while those issues have our attention. As Winston Churchill said, in a rule Rahm Emmanuel recycled, "Never let a good crisis go to waste." But if some politicians, pundits, and more normal folk don't ever complain about the exploitation of workers, I don't want to hear from them about the exploitation of sex workers; if they are totally silent on rates of mugging, assault, battery, and violence generally, they would do well to remain at least soft-spoken when it comes to those crimes combined with sex.
Having grown up in America through the Civil Rights Movement, I'm concerned with which victims count and which don't count so much. "The rate of rape and sexual assault" of women 18-24 years-of-age "was 1.2 times higher for nonstudents (7.6 per 1,000) than for students (6.1 per 1,000)" according to a posting on the US Bureau of Justice Statistics. And to quote a Wikipedia article giving what should be a commonly-known set of statistics, "A United States Department of Justice report […] states that 'In 2011-12, an estimated 4.0% of state and federal prison inmates and 3.2% of jail inmates reported experiencing one or more incidents of sexual victimization by another inmate or facility staff in the past 12 months or since admission to the facility, if less than 12 months'" — which may "under report the real numbers of sexual assaults in prison, especially among juveniles."
Politicians, pundits, moralists, and other folk stressing sexual violence on US campuses, people willing to mandate detailed regulation of sexual conduct to prevent even ambiguous cases of sexual assault — I want to hear from them at least now and then on sexual assaults against victims with less clout: poor women not in college, prisoners, and, more generally, "People not well connected."
My main concern with the proposed legislative mandates, though, comes from having helped write rules for The Student Handbook at Miami University, Oxford, Ohio; 'cause a State mandate on affirmative consent requires rules and makes inevitable clarifying guidelines and information sessions and advice from Student Affairs staff on how to have "Legally Safe Sex."
In most of the discussions I've encountered, "affirmative consent" is defined as "'affirmative, conscious, and voluntary agreement to engage in sexual activity' every step of the way," and this formulation raises serious questions for collegiate writers of the rules to ensure that the law is obeyed, and for those getting out pamphlets and having (compulsory?) informational meetings for students on how to obey the rules.
(1) My first question as a rule writer would be how to write the rule for married students.
You can't exempt married students from rules on sexual assault without having the university denying the possibility of marital rape. On the other hand, to get the State, through public universities, involved in the sex lives of married people seems a horrible idea.
The question of married students leads to dealing with graduate students, say doctoral candidates in their late 30's. To what degree can the State, through the university, tell mature citizens how they must behave sexually if they are to ensure that they are obeying the rules, whether or not they're concerned about being accused of wrongdoing by a partner. As a practical matter, such accusations are pretty much the only serious worry for students engaged in sex, but writers of university regulations and advice pamphlets have to tell people what to do to obey the rules, not what it's safe to do if you aren't likely to get accused.
So: Should you tell doctoral candidates to be sure to ask explicitly, and with words, what it is they want to do sexually, in private, with one or more consenting partners?
This was not a problem in the old days of in loco parentis, when schools were "in place of the parents" and all students of any age were legally "infants" in relation to school authorities. But what should be policy nowadays with thirty-year old graduate students or a thirty-year old junior? What should be the policy for a nineteen-year old sophomore male, registered to vote and registered for the Draft?
In a time when arrested development is a major problem among young people in America, it is a bad idea to treat college students like children and set up self-fulfilling prophecies. Not so much in State statutes but in writing the rules to implement those statutes, how strictly and explicitly should colleges and universities advise adults on how to behave sexually — or risk punishment in university disciplinary systems that offer fewer due process protections than US courts?
(2) My second question would be how to reconcile requiring the asking of explicit questions about sex with rules against sexual harassment. When does requesting "affirmative, conscious, and voluntary agreement" at every step become sexual harassment? When advising students on legally safe sex, what should you tell them about when to start asking explicit questions? In one form of ideal world, young men and women (or post-pusescent girls and boys) would feel free and comfortable to go up to someone they find attractive and say, "Hi. I find you sexually attractive. Would you like to talk a bit and see if we'd both like to go over to my place or yours for sex acts we'd both enjoy?" In one form of ideal world, such a conversation would be unremarkable; but for good and ill, such a world is not one we live in.
"Hey, would you like to copulate and maybe engage in oral sex?" is not a line likely to get a guy sex — although it might work for gals. Relevant here, though, is it a line we wish to encourage or even require?
(3) I haven't followed this debate into lurid detail, but what I've heard seems to assume pretty vanilla sex, and, indeed, vanilla is what sex usually is. But not always. With a bit of ingenuity a committee can probably write rules that cover group sex without getting gross or grotesque, but the rhetorical and ethical problems get more complex with, say, sadomasochism or just bondage. On the one hand, I'm not sure I'd like to write rules or put together a PowerPoint presentation or website entry that covered how to get consent in encounters involving handcuffs and a ball gag, especially if the major objective of the game is domination and silent submission. On the other hand, it is naïve to think that no students at no time are going to engage in low-rent, 20-shades-of-off-white S&M, one of the more popular perversions.
Check out a porn site or two for the range of sex acts to cover; the people writing the university regulations will need to do so. And then consider if it's a good idea for university regulations to stipulate what sort of sex games are permitted or forbidden to initially consenting adults in private.
A more practical concern is that the whole argument over the details of affirmative consent and ambiguous cases of sexual assault draws attention from simpler and more immediate issues.
With the one instance when I had to deal with a rape issue as a member of a university and civic community, there was nothing subtle involved. My student was a serial rapist, and the solution to the problem he presented, from an institutional point of view, was his being arrested, prosecuted, tried, convicted, and sent to prison, which very effectively got him off campus and will keep him away for a very long time. My experience proves nothing in itself, but illustrates a wider concern: It may not be the case that "On college campuses, repeat predators account for 9 out of every 10 rapes," but the policing of sex on campus (and elsewhere) should begin with robust police and prosecutor efforts against rapists and preventing patterns of rape.
There are, though, social and cultural issues behind disturbing rape statistics, more subtle issues with which colleges and American society more generally must deal and deal seriously.
Few of my students had the phrase or concept "macho asshole," nor had they sufficient experience with alternative ideals of masculinity even to make jokes about SNAGs ("Sensitive New Age Guys") or "the strong, silent type." A fair number of my students had grown up in social and political subcultures and in niches of popular culture where adolescent swagger was respected rather than scorned and where violence was associated with strength and not weakness of character. As time went on, increasing numbers of my students could use "bitch" and "bitches" and "bitch-slapped" in everyday speech where they would never use words like "nigger" (and didn't even know slurs like "kike" and "dago"). In most cases, this background cultural noise had little effect: the great majority of college students hit eighteen as good kids and continue their way as being responsible young (and not so young) adults.
But some became macho assholes, if, with college, better schooled and better spoken macho assholes. And part of the macho asshole role is disrespect for women and weaker men, and occasional or repeated violence toward them.
The swagger admired too widely in US politicians does not help here, nor similar posturing by male leads in action movies — nor their real-world behavior off-screen. We need more cultural ideals of manhood involving self-control and low-key confidence, and an ideal of courage consisting not in "Taking out the trash" and "Wasting the bad guys" but in the sort of cop who doesn't fire until fired upon and risks taking a bullet rather than shooting an unarmed civilian.
For nicely ironic balance, the production of "good kids" both male and female is also and perhaps equally an aspect of the sexual-assault problem gone after by "affirmative consent" rules.
Unlike the ideal of the macho bad boy, ideal "good kids" don't drink booze in high school, and they don't try to get laid. The law-abiding, dutiful parents of "good kids" don't give their kids beer or wine or stronger drinks: as the sign says in the train station in the fancy suburb of Highland Park, IL — and elsewhere — "Parents Who Host, Lose The Most." The upshot of such ideals and public policies is that nowadays fewer parents than is healthy teach their children how to "drink like gentlemen"/"drink like a lady" or how to go about getting laid (etc.) like civilized grownups.
So young college students booze like adolescents, and engage in sex in what one theologically sophisticated undergraduate described as the good (Catholic) kid fashion of "Get drunk, get stupid, get laid," get penitent, get absolved … and then repeat the process as often as possible.
"Affirmative Consent" goes against the subconscious strategy of being a relatively "good kid" and still getting laid. The theology is straightforward, especially for a traditional Catholic. To get drunk and get animalistic is to engage in bestial sins abhorrent to puritanical cults and subcultures. But wordless, drunken, animalistic rutting is far less sinful than getting demonic by warping one's divine Reason and Will with "affirmative, conscious, and voluntary agreement to engage in sexual activity," i.e., in traditional Christian terms, to engage in the mortal sin of Lust realized in — for the unmarried — fornication. Falling into sin is one thing; consciously choosing sin and articulating your choice is literally willful disobedience and an enactment of Satanic Pride.
Few college students — hell, few American PhD's! — have the theological training to do that sort of conscious analysis, but America's "good kids" can still live out such logic with exquisite exactness over a drunken weekend.
The campus sexual assault problem will be ameliorated when assault generally in the United States is reduced. It will be ameliorated when macho asshole serial rapists are regularly arrested and imprisoned, and when macho swagger is laughed at and despised: when it's no more socially acceptable to say "bitch" than for a White to say "nigger." We'll go a long way toward a solution when American parents teach their children how to use booze and not abuse it, and how to engage in a variety of sexual activities sensibly and responsibly — and consensually, consciously, responsbibly, and with minimal feelings of guilt and embarrassment.
Such sex should be engaged in with some conversation, but not necessarily obsessively "talking dirty" over each new move citizens in college want to try.
(1) Damnation: If a number of traditional theories are correct, pre-marital sex of any sort may send its practitioners to hell. In California, we have occasional signs informing people that "The State of California has determined" that some action or other is hazardous (e.g., as a risk of cancer or birth defects). It would be a sensible accomodation to religious believers to publish rotating notices along with affirmative consent rules, some statement of unarguable fact like, "WARNING: Traditional Christianity has taught that sex outside marriage — possibly any sex act without the potential for reproduction — is an offense against chastity and may condemn your soul to the lake of fire that burns forever." Or, "CAUTION: Acts of male homosexuality are forbidden under Leviticus 20.13, fornication by 1 Corinthians 6.18." As to whether or not such teachings are correct, neither the United States nor any of the States may take a position, but it would be courteous to traditional believers to state the facts of traditional belief when, arguably, one is encouraging young people to go against them.
(2) Tuition and Fees: Off and on from the 1970s into the 2000s, I worked on rules as part of the Service requirement for my job as a full-time member of a university faculty. Nowadays at least the key portion of such work would be done by lawyers from the Office of University Counsel — and/or at the office of the state Attorney General — billing at the rate of lawyers.