What is the meaning of Yes? California Colleges May Have to Decide.

California is now debating a law which requires its universities to come up with an "affirmative consent standard" that could be used in investigating and adjudicating sexual assault allegations. The standard would be defined as "an affirmative, unambiguous and conscious decision" by each party to engage in sexual activity.

What would prompt such action?  University campuses are not merely awash with sexual activity.  The assumption going in is not whether students will engage in sexual activity but how to make sure sexual activity doesn’t get out of control.  Particularly, and specifically, the concern is that some students (read: males) will have sex with other students (read: females) who have not truly consented to have sex.  One problem that has arisen during this time of all out sexual liberation is that, allegedly, one out of every five young women on college campuses have been sexually assaulted.  I don’t know the basis for this statistic except that it comes from a White House task force.  I do know the Department of Education released the names of numerous (many “top flight”) educational institutions that had problems in this area. 

Ironically, though,  any effort to restrain sexual conduct is deemed offensive.  The Los Angeles Times editorialized that “It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely.”

So the tension is that libertines want unbridled sexual freedom but only when it’s absolutely clear that it’s unbridled, “consensual” sexual freedom.  Never mind that college campuses are

bastions of alcohol and drug induced sexual activity in which the participants may not always be in control of their senses and, thus, unable to ascertain with complete clarity whether the person with whom they are engaged in sex is, in fact, consenting.  Does consent have to be verbal or is a nod or some other physical action sufficient?  Must the parties enter a written agreement before having sex?  What happens when consent occurs while the parties are both intoxicated?  This is not an excuse for rape or any other kind of sexual assault.  However, what happens when Jane Doe wakes up the next morning and is half naked lying next to a guy whose name she may or may not know for sure?  Was there consent?  Was there not?  Who truly knows? 

These are the very kinds of laws that MUST exist when we untether ourselves from more fundamental moral restraints.  When, as a society, we decided we wanted unbridled sexual freedom, we failed to acknowledge the consequences.  One of those consequences is that the idea of consent inevitably becomes much more fluid.  In the not so distance past in the United States the anticipated norm for sex was that a man and a woman would be married before having sex.  Now there is no anticipated norm for sex, except that most of us still (thank God) see pedophilia as wrong.  When the guidelines for sexual activity become amorphous, consent, like other facets of sexual activity, loses its distinguishing characteristics – it’s just part of the morass.

So, now, ironically, the state of California is debating actually passing a law that requires colleges receiving public funds to specify what consent looks like.  After Lawrence v. Texas, 539 U.S. 558 (2003), one wonders if such a law can pass constitutional muster.  After all, wasn’t the premise underlying Lawrence that intimate sexual conduct was protected by the 14^th Amendment?  If the state can’t regulate with whom one can have sex, might there be a problem trying to legislate what consent means?  Doesn’t this also mean these universities will be in the business of defining what sex is, as well?  Is kissing alone sex or do you need something else?  What else?  I won’t get any more graphic  but you get the point.

So California colleges may now have to come up with a definition of consent.  Ironically, this means that colleges will have less flexibility to deal with sexual assaults and, I predict, will actually lower the reporting.  People aren’t stupid.  Guys will now simply pull out their phone and video a young woman agreeing to sex so they have proof of consent and post it to Facebook or Instagram before they do anything and then what?  Now the whole world knows she said yes.  Moreover, this will mean, by definition, there will come a point during the sexual encounter where the consent cannot be withdrawn.  Otherwise, yes doesn’t really mean yes, leading to legal rape.  She no longer wants to, but said yes . . . so she’s stuck.  Is this what we’re after?  Really?

Yet, this is what happens when we untether ourselves from moral norms.  The inevitable result is that life must be regulated in every detail because people cannot be allowed to govern themselves.  Moral norms serve that purpose but in a pluralistic and predominantly secular society, moral norms no longer mean anything and are often seen as retrograde and anachronistic.  Ironically, though, leaving moral norms behind leads not to more freedom but less.  So now already confused and discombobulated 18 year olds arriving on California college campuses will find themselves dealing with an arcane code of sexual conduct which will likely require an entire course to understand.  Maybe we'll get lucky and students will decide it's too complicated to have sex and opt out until they get married.  I'm not counting on it, but one can hope.