For example, my wife and daughter never ask for, or seek, permission before they hug me. Precisely because they know it would be welcome. Explicit consent is unnecessary when something is harmless and unobjectionable (or downright enjoyable, like sex between married couples).
By contrast, grudgingly consensual sex acts, like those between a prostitute and her clients, are generally preceded by explicit discussion and verbal agreement, because one party wants sex, while the other merely puts up with it to obtain money or other benefits. A verbal request followed by an explicit “yes” often reflects an imbalance in sexual desire between partners, not the ideal in which both partners deeply want it. Rather than disrupting the rhythms of a couple’s lovemaking by requiring explicit discussion, these people should recognize that an explicit “yes” is not the ideal. When I told one of my past housemates, a court reporter who has taken depositions in sexual harassment and assault cases, about a similar proposed definition at Harvard, where I got my law degree, she was amazed. She could not think of anything more awkward than being asked point blank for sex by a would-be partner.
In addition to endangering privacy rights, SB 967 also contains provisions that could undermine students’ due process rights, such as mandating a low standard of proof for discipline, and encouraging anonymous allegations, as I explained in a letter published last month in the Sacramento Bee. The bill’s requirements apply not just to public colleges, but also to certain private colleges.
On February 25, the University of California system appears to have essentially adopted most of the requirements of SB 967, in a new policy defining “sexual assault” and “sexual violence,” defining it to include some conduct that is not violent at all. What concerns me most is that the policy defines “sexual assault” to require “unambiguous” “affirmative” consent prior not just to penetration (which is not always unreasonable if consent is defined to include non-verbal cues as well as verbal responses), but also “physical sexual activity” in general. Effectively, this might ban foreplay as it commonly occurs among married and unmarried couples alike. Things like vaginal intercourse generally are in fact preceded by non-verbal affirmative permission, since it generally requires physical movements by both parties to facilitate.
But most “sexual activity” falling short of actual intercourse (i.e., foreplay) is not preceded by affirmative permission or consent. Instead, it is often acquiesced in by the recipient as part of a process of gradual escalation in which each partner engages in a new form of intimate contact that that the other acquiesces in. For example (and I regret the necessity of providing these graphic examples, which are necessary for the sake of clarity), the husband starts touching or licking his wife’s breasts to see if she likes it and to turn her on, or the wife grabs the husband’s member while in bed with him engaging in foreplay (to get him firm enough for penetration), that might constitute sexual assault under this policy, even if it is welcome and enjoyed.
Why? because it is not preceded by “an affirmative . . . decision” to consent by the recipient, but rather is initially acquiesced in. The “consent” follows the activity, rather than preceding it, meaning the activity was potentially non-consensual for at least a brief time before the recipient became aware of it and consented to it. These activities are essential to foreplay, and are a step-by-step process that would be ruined by explicit discussion at every step (it would ruin the mood, thus defeating the very purpose of foreplay). My wife would be very annoyed if we verbally discussed these things. Thus, both husband and wife are defined as sexual assault perpetrators by this bill. Requiring consent in advance under these circumstances is sexually repressive and unfair. Foreplay is a long progression of steadily escalating intimacy in which each partner alternately initiates and acquiesces in deeper intimacies, not a sudden act that requires prior discussion.
Yet, the University of California policy says:
“Sexual Assault occurs when physical sexual activity is engaged without the consent of the other person or when the other person is unable to consent to the activity. . . .Consent is informed. Consent is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. . .Consent means positive cooperation in the act or expression of intent to engage in the act . . . Consent to some form of sexual activity does not imply consent to other forms of sexual activity. Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion. A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. . .Consent must be ongoing throughout a sexual encounter.”
Although this language is vague (at one point, it allows consent to be based on “positive cooperation,” which might extend beyond consent in advance), it clearly defines some sex and sexual activity as sexual assault on campus, even if it would be perfectly legal off campus (it does so even more clearly than SB 967 does). It does that even though college students are largely adults who have the right to vote, get married, and serve in the military. For example, students have First Amendment rights that are largely “coextensive” with their rights in society generally, as the Supreme Court has indicated in decisions such as Papish v. University of Missouri Curators, Healy v. James, and Rosenberger v. University of Virginia. (Disclosure: I used to practice education law for a living.).
The assumption seems to be that California’s general definition of sexual assault, which applies off campus, is too narrow. But this assumption is dubious, and in a few rare situations, the existing California definition of sexual assault may already be too broad. Men and women involved in sexual relationships learn the intimate preferences of their partners. As a result, they often know without discussion when their partner desires sex, and can often tell in advance from context whether their partner will welcome a particular sexual act. For example, the former girlfriend of a college hallmate of mine at the University of Virginia would sometimes awaken him through oral stimulation, evincing her desire for intercourse, which generally ensued between them without discussion. Under existing California law, this pleasurable activity is already treated as sexual assault, since a California appellate decision ruled that people cannot consent to future sex while incapacitated. But every person who heard this anecdote thought my hallmate was a lucky man, not a victim of sexual assault (the pleasure of sex may in some cases be enhanced by the element of surprise). Thus, the current California legal definition of sexual assault already appears to be too broad, not too narrow, in such situations.