Affirmative Consent & False Rape Accusations

Now that the United States Supreme Court has legalized gay marriage in all 50 states – a huge victory for gays and lesbians that I applaud – we can focus on the next horizon.

Judith Shulevitz writes about regulating sex in the New York Times. About a quarter of the states, she writes, are considering “yes means yes” laws. On the surface this seems to be common sense. Sex without consent is rape.

Well, unless you’re a woman who forces or coerces a man against his will. It’s only rape when a man does it.

Indeed, throughout her op-ed, Shulevitz refers to the person requesting consent as he, and the person saying yes or no as she. Shulevitz also refers to the prosecutor as she. Whether this is intentional is unclear.

I am not saying that consent isn’t essential. I disagree with Warren Farrell’s claim in The Myth of Male Power that it’s “date fraud” if a woman makes out with a man but says no to sex. Consent to second or third base is not consent to home base, and there’s nothing fraudulent about drawing a boundary.

Further, while MRAs criticize feminists for promoting false statistics – such as one out of five college women will be sexually assaulted, or a third of men would rape if they could get away with it – I’ve seen some MRAs promote phony statistics about false rape allegations.

A popular fake statistic is that 41% of rape allegations are false. This is based on a study by Eugene Kannin with a small sample size (109) from one small police department. The sample size is too small to render any conclusion. Further, in no way can one say this is a representative sample of the entire United States. False rape accusations do happen – remember Jackie from Rolling Stone and the Duke lacrosse players? – but we don’t know the prevalence.

However, affirmative consent laws, owing to their vagueness, may make false accusations more common. I had the honour of being blasted in the Mancheez blog for a comment I posted on A Voice for Men. The article discussed how sexual consent is often nonverbal, but the burden of proof is one sided. I wrote:

Let’s say she sticks her hands down his pants, and one thing leads to another. Neither of them said no, neither said yes. She may have initiated, but her lack of a verbal yes makes him the rapist, not her.


Mancheez’s response to that was:

Did you ask her to? See, because if you didn’t and you didn’t want it that’s RAPE dudebro. Putting her hand in your pants doesn’t mean you get to do whatever you want either.

At least she acknowledged that a woman can be guilty of rape. Of course, she followed it up by refuting an argument I never made. I never said a man can do whatever he wants.

Shulevitz notes that under one proposed version of affirmative consent, holding hands with someone without obtaining a verbal and enthusiastic yes could lead to a conviction for a sex offense, and possibly having to register as a sex offender.

She asks how enforceable such a law would be, and whether its enforcement would be inconsistent, resulting in the law being used “to harass people deemed to be undesirable”. One commenter noted that holding hands and even kissing is not always sexual, which would require courts to interpret the intentions of the parties involved.

Affirmative consent laws raise other questions: How specific must the questions be? How often must consent be reaffirmed? Are there different intervals of re-consent for different sex acts?

When giving consent, what exactly is enthusiastic enough? What tone of voice or voice volume constitutes enthusiastic? What if later she says she sounded enthusiastic but didn’t feel as enthusiastic as she sounded?

Is a woman incapacitated after just one beer? (We know a man obviously isn’t.) What blood alcohol level renders a woman incapable of giving consent? (A man’s consent, apparently, isn’t necessary even if he’s incapacitated.)

These sound like questions from a socially awkward idiot. But they’re serious questions as far as affirmative consent’s current vagueness goes.

The vagueness of proposed affirmative consent laws makes consent less clear. This could enable women to effectively revoke consent after having initially given it, even though that’s not the intent of yes means yes. Still, if a couple breaks up or he displeases her in anyway she can find some technicality from a previous sexual encounter and charge him with rape.

I fully agree that sexual consent is essential. But proposed affirmative consent laws need serious revisions before we can say that affirmative consent truly takes the issue of consent seriously.