Political Liberalism and California's Affirmative Consent Law

I recently read an LA Times piece by Jonah Goldberg about California's "affirmative consent law," a strategy for attempting to grapple with the problem of rape on college campuses. In that piece, Goldberg sees liberal support for this law as evidence that political liberals are inconsistent or disingenuous when it comes to their views on government intrusion into private sexual behavior. While they cry "theocracy" every time conservatives try to legislate what's allowed in the bedroom, they are here supporting just such sexual legislation themselves. Is Goldberg right?

He opens his piece with this general rant about political liberals:

 You see, for years I've been railing and ranting about the ridiculous myth that liberalism is socially libertarian; that liberals are "live and let live" types simply defending themselves against judgmental conservatives, the real aggressors in the culture war.

That thinking runs counter to most everything liberals justifiably take pride in, as liberals. You can't be "agents for change," "forces for progress," or whatever the current phrase, and claim that you're not the aggressors in the culture war. Liberals have redefined a millenniums-old understanding of marriage while talking as if it were conservatives who wanted to "impose" their values on the nation...

...Liberals, meanwhile, are quite open about their desire to use the state to impose their morality on others. Many conservatives want to do likewise, of course. The difference is that when conservatives try to do it, liberals are quick to charge "theocracy!" and decry the Orwellian horror.

Goldberg then uses this rant as a springboard for claiming that liberal defenders of the affirmative consent law are doing the same kind of thing that conservatives are accused of doing when, say, they endorse sodomy laws. They're trying to regulate private consensual sex.

But there's much that's wrong with Goldberg's opening rant. First of all, it's hardly true that all (or even most) liberals and social progressives try to represent themselves as socially libertarian--although much hinges here on what the qualifier, "socially," is supposed to mean. Liberals certainly see a place for government in remedying social problems, such as systemic discrimination and the exploitation of laborers.

Nor would most liberals claim that they are "simply defending themselves against judgmental conservatives." Liberals and progressives see a world that is not perfect, a world in which social injustice is always a reality and is often entrenched in long-standing systems, And they think people have a responsibility to identify social injustices and work for change. The civil rights movement--which combined nonviolent grass roots activism with lobbying for legal remedies--offers a model for the approach to promoting social justice that liberals and progressives typically endorse. And while "aggressors in the culture war" is not even remotely apt as a description of what the civil rights movement was about, neither is it right to say that civil rights activists were "simply defending themselves against judgmental conservatives."

But beyond the mischaracterization of liberals, there is a deeper misconstrual of the nature of liberalism itself. A hallmark of political liberalism as a philosophy is that it draws a distinction between two things: (a) public principles of justice and (b) the values (both personal and communal) that define a holistic way of life--what the political philosopher John Rawls called "a comprehensive conception of the good life." Political liberals believe in a conception of public justice arrived at by attempting to answer the following question: What kinds of public principles would reasonable people, with different comprehensive value systems, agree to when no one had distinct bargaining advantages?

The principles which emerge from answering that question are ones that, in principle, every reasonable person should accept, regardless of what their holistic value system looks like. When a government shapes public policies in the light of these principles of justice, they are doing so without having to side with one sectarian worldview over another. These rational principles are supposed to provide a framework that allows everyone to live out their own comprehensive conceptions of the good life--usually in community with others--in a manner consistent with everyone having a comparable chance to do the same.

If you look at what Goldberg says, it's as if he isn't even conscious of this structural feature of political liberalism. The distinction between public justice and private values plays a crucial role in the arguments of liberals on topics such as same-sex marriage--but it's entirely missing from Goldberg's rant.

On the issue of same-sex marriage, the political liberal argues that equality under the law is one of those public principles of justice that everyone can reasonably accept (assuming they can step out of their sectarian commitments long enough to ask themselves what principles are needed in order for everyone--regardless of their sectarian principles--to have a comparable chance to live together peaceably as they try to live out their values). Political liberals argue that discrimination under the law is therefore impermissible unless there's a sufficiently powerful justification for it. But such a justification has to itself be based on principles that every reasonable person can accept, regardless of their particular worldview--for example, the concerns about public safety that would justify treating the blind differently under the law when it comes to issuing driver's licenses.

Most notably, political liberals cannot accept a justification for discrimination that appeals to sectarian religious ideas not shared by everyone. If the state did that, it would be adopting the values of that religious sect in a way that compromised its capacity to serve the mediating role it's supposed to serve--the role that's supposed to enable everyone to live out their comprehensive conception of the good life in a manner consistent with everyone else having a comparable chance to do the same.

When liberals cry "theocracy," it's because they fear that social forces are trying to push the state to adopt a particular sectarian value system, rather that operate from neutral principles of justice. And when liberals want the state to legalize same-sex marriage, they don't see themselves as asking the state to impose "their" values on everyone. Rather, they see this as demanded by a neutral principle of justice.

One could, of course, argue that there are no neutral principles of justice, that the distinction political liberals make is a false one, and that their purportedly "public" principles of justice don't spring from objective reason but rather from the liberals' own preferred private value system.

This is not an uncommon criticism, and there may be some truth to it. But if Goldberg wants to make that criticism, he needs to make that criticism. In other words, he needs to acknowledge that liberals perceive this distinction and rely on it in making their case...and then show why he thinks the distinction is illusory. Goldberg does no such thing. He simply assumes that there is no such distinction and interprets liberal politics through the lens of that assumption.

But this amounts to assuming that political liberalism is false and then criticizing it based on that assumption. That's called question-begging.

So what does all of this have to do with California's affirmative consent law? It's worth asking whether the philosophy of political liberalism could justify the kind of sexual regulations at issue in this law. In other words, its worth asking whether there is a relevant difference between California's new approach to regulating sex and the approach on offer in the old sodomy laws that political liberals condemn. But we don't answer this by doing what Goldberg does: mischaracterize the law itself, make sweeping claims about its overreach, and then without argument throw it in the same category as conservative efforts to legislate what happens in the bedroom.

So how do we answer it?

At the heart of political liberalism is the ideal of a society comprised of free and equal citizens with the opportunity to live out their vision of the good life on an equal footing with others. And control over one's body--what is done with it and to it--seems central to anyone's capacity to live in accord with their values. Thus, any reasonable person, regardless of their value system, could endorse a public principle according to which the state uses its power to protect such bodily autonomy. This is presumably why nobody complains about laws against kidnapping, assault, and rape.

In a broad sense, the California affirmative consent law has been passed in order to protect the bodily autonomy of women on college campuses. Hence, in terms of its intent, the law falls within the scope of what political liberals would see as a legitimate exercise of state power. But intentions don't always match with reality. Does the new law, as some critics argue, micro-manage private sexual activity in a way that amounts to an excessive imposition on individual autonomy?

To answer this question, we need to look at the substance of the law.

First of all, we need to be clear that the new law is not defining rape for purposes of criminal law, nor is it about standards of evidence in a court of law or elsewhere. It does nothing to answer the difficult questions of how we determine what really happened in an encounter where the parties are telling competing stories--or when such disputes engender "reasonable doubt."

Rather, the new law is about how to define consent in sexual encounters. It isn't defining consent for the sake of criminal rape cases. It's defining consent for the sake of shaping more useful rape prevention and response programs on college campuses. Specifically, the law ties state financial aid moneys to the implementation of college rape prevention and response programs that adopt an affirmative understanding of consent.

The idea behind affirmative consent is this: Consent is not the absence of a no but, rather, the presence of a yes--verbal or nonverbal. Goldberg is just wrong when he says that the new law "will require a verbal 'yes' at every stage of amorous activity on college campuses." I've read the bill, and it makes no such requirement. He's either deliberately lying in order to make the law an easier target, or he hasn't bothered to read the law carefully before writing an op ed piece against it for a major newspaper. Advocates of affirmative consent consistently insist that there are many ways to convey affirmative consent, both verbal and nonverbal, and the law says nothing that contradicts this widespread understanding.

If it did, then the complaint that the law is engaged in micro-managing bedroom behavior, requiring specific moves of a specific kind at various places, would be legitimate. And such micromanagement would, I think, be hard to justify on political liberal grounds.

So, if affirmative consent doesn't specifically demand a verbal "yes" to every escalation in a sexual encounter, what does it require? The main thing it does is reject the idea that consent is implied in the absence of overt verbal refusal or physical resistance. You can't assume, just because your partner didn't say "no" or fight you off, that she was consenting.

On an affirmative consent model, your failure to actively refuse is not the same as consent and shouldn't be treated as consent. There may be reasons why you fail to say "no" explicitly or forcefully--reasons having to do, for example, with fearing the consequences of such overt refusal. But silently lying there like a stiff log while someone starts using your body isn't the same as consenting to sex. Consent is a positive thing, as opposed to the absence of overt refusal.

There's enormous confusion about this, some of it (I think) willful. But think of it this way. Suppose Joe enters his son's bedroom in order to take money from his son's piggy bank to use for beer. Suppose Joe is carrying a switch with him--a switch that he's used in the past to beat the boy. Suppose the boy watches sulkily from the corner, not saying a word, while Joe takes $40 out of his worldly savings. Has the boy consented to Joe taking his money? Of course not. The boy has uttered no word of refusal and has engaged in not a single act of resistance. But he hasn't consented. Who would assume that he has?

The problem is that, for too long, that's exactly what we've been assuming in the sexual arena.

Understanding consent in affirmative terms doesn't require couples to kill the mood or shut down the rhythm of passion in order to whip out a consent form. If the rhythm of passion is really there--for both parties--then that fact by itself amounts to obvious, in-your-face affirmation of consent.

Let me say that again: If you're in the midst of a sexual encounter and you and your partner are passionately kissing each other, mutually ripping off each others' garments, and eagerly grabbing for each other, you both have very strong evidence of affirmative consent--and no reason to stop to make sure the other person is really into it. When everything your partner is doing is literally screaming out a "Yes! Yes! Yes!," you don't need to stop to ask for a verbal yes.

But if your partner is hesitating, crossing her arms across her chest, pulling away, not returning your kisses, or freezing up as you begin to unbutton her blouse, it's a different story. In that case, pausing to ask whether this is welcome isn't "killing the mood," because there is no mood to kill. At least not for her. And if the worry is that pausing to ask if she really wants this is killing the mood for you--and her moods be damned--then you're acting like a rapist.

Let me say that again: If you don't care about whether she wants to have sex with you or not, and so you charge ahead with your plan to have sex with her no matter how mixed the signals are, because you are indifferent to what she wants, you are acting like a rapist.

The affirmative consent approach is focused on how to treat ambiguity and mixed signals. For too long, people have adopted the idea that if one partner (usually the woman) is giving mixed or ambiguous signals or no signals at all, then she hasn't said "no"--and so the guy should just feel free to assume "yes" and take what he wants. And if it turns out later that her wooden silence happened because his aggressive advances triggered memories of childhood abuse, and she retreated into that same psychological hiding place that she went to when her abuser came into the room...well, how was he supposed to know? After all, she was just lying there like a corpse. Isn't that what people do when they're into having sex with you? Lie there like corpses and stare off into space?

In what other context of human life do we treat such absence-of-active-refusal as default consent? When it comes to something as central to living out our values as control over our own bodies, do we really want to adopt an understanding of consent that is as weak as "If you didn't vigorously refuse, that's as good as saying yes."

Part of the problem here is that, more often than not in cases like this, the woman did actively refuse, did actively say no, and her partner kept pressuring her, often in intimidating ways. And because she saw the trajectory of the evening, because she saw his indifference to her expressed preferences, because she was afraid, she decided it was safest just to stop actively resisting. If he was that indifferent to her wishes, what would happen if she refused more forcefully? Would that just lead to a more forceful response from him? Would it lead to a violent rape? Better, perhaps, under these conditions, to just become a log.

And for too long, when this sort of thing happened, the guy has congratulated himself for his masterful seduction skills: She started out saying no, but--hey!--she stopped saying no! I've won her over!

No. You've worn her out.

The affirmative consent perspective says that becoming a log isn't consent. In other words, this perspective says that something which obviously isn't consent...isn't consent.

Of course, ambiguous signals and silence don't necessarily mean refusal--but they do generate an obligation to check in. And if you don't check in--if you just plow ahead--then you are displaying indifference to your partner's will in the matter. What the affirmative consent approach demands isn't that you kill the mood, but that you check in if your partner doesn't seem to be in the mood. It demands that you not be willfully indifferent to what your partner wants when it comes to the use of her body.

In terms of implications for disciplinary action in response to rape allegations, adopting an affirmative understanding of consent won't resolve any of the "he said/she said" uncertainties that plague these cases. The affirmative understanding of consent will impact disciplinary actions only when the defendant's defense against the charge is that the alleged victim really consented. And what the affirmative understanding will mean in such cases is that we won't be able to evaluate this defense by determining whether the alleged victim was sufficiently diligent in screaming out her refusal. Instead, we will need to assess whether he really had good reasons to think that she wanted to have sex (as opposed to conveniently imposing this assumption on an unclear situation).

To adopt such an understanding of consent, far from being "beyond idiotic" as Goldberg contends, amounts to adopting an understanding of consent that reflects what consent actually is. Consent is more than just not refusing. Consent is affirmative. And adopting such a standard seems eminently reasonable if our goal is to advance individual bodily autonomy.

The California law does not seek to do this by writing such an understanding of consent into the criminal definition of rape. It's unclear how doing so would impact rape prosecutions, given the reasonable doubt standard that applies to criminal cases. It may be that, for the purposes of establishing reasonable doubt, there's little difference between the kind of evidence that could lead to reasonably doubting that the alleged victim refused and the kind of evidence that could lead to reasonably doubting that the alleged victim never consented.

But this law brings the affirmative consent standard to bear in a context where it clearly can make a difference: College policies, including prevention policies that educate the student body about conditions of consent and the difference between saying yes and not saying no.

Political liberalism maintains that certain principles are ones that everyone, regardless of their comprehensive value system, should adopt. A principle of respecting bodily autonomy is one such principle. Such respect is better served by an affirmative understanding of consent than by a negative one. So for me, the only question at issue here has to do with the specific way in which the State of California is acting to promote bodily autonomy--by tying state financial aid money to college rape education, prevention, and institutional disciplinary approaches that reflect the affirmative understanding of consent.

Such a policy has very little in common with laws that seek to criminalize "sodomy"--laws that say it is a criminal offense to insert body part A into body part B even if everyone involved is an eager participant. While the conservative champions of these sodomy laws would be hard pressed to invoke a non-sectarian principle of justice to warrant criminalizing what they want to criminalize, the affirmative consent law can readily point to such a principle: respect for bodily autonomy.

But this is not the same as saying that the way the law expresses this principle fits with the broader constraints of public principles of justice. To show that, we'd need to dig deeper.