Regulating Sex

From The New York Times (and encourage you to read all):

THIS is a strange moment for sex in America. We’ve detached it from pregnancy, matrimony and, in some circles, romance. At least, we no longer assume that intercourse signals the start of a relationship. But the more casual sex becomes, the more we demand that our institutions and government police the line between what’s consensual and what isn’t. And we wonder how to define rape. Is it a violent assault or a violation of personal autonomy? Is a person guilty of sexual misconduct if he fails to get a clear “yes” through every step of seduction and consummation?

According to the doctrine of affirmative consent — the “yes means yes” rule — the answer is, well, yes, he is. And though most people think of “yes means yes” as strictly for college students, it is actually poised to become the law of the land.

 

About a quarter of all states, and the District of Columbia, now say sex isn’t legal without positive agreement, although some states undercut that standard by requiring proof of force or resistance as well.

 

Codes and laws calling for affirmative consent proceed from admirable impulses. (The phrase “yes means yes,” by the way, represents a ratcheting-up of “no means no,” the previous slogan of the anti-rape movement.) People should have as much right to control their sexuality as they do their body or possessions; just as you wouldn’t take a precious object from someone’s home without her permission, you shouldn’t have sex with someone if he hasn’t explicitly said he wants to.

 

And if one person can think he’s hooking up while the other feels she’s being raped, it makes sense to have a law that eliminates the possibility of misunderstanding. “You shouldn’t be allowed to make the assumption that if you find someone lying on a bed, they’re free for sexual pleasure,” says Lynn Hecht Schafran, director of a judicial education program at Legal Momentum, a women’s legal defense organization.

 

But criminal law is a very powerful instrument for reshaping sexual mores. Should we really put people in jail for not doing what most people aren’t doing? (Or at least, not yet?) It’s one thing to teach college students to talk frankly about sex and not to have it without demonstrable pre-coital assent. Colleges are entitled to uphold their own standards of comportment, even if enforcement of that behavior is spotty or indifferent to the rights of the accused. It’s another thing to make sex a crime under conditions of poor communication.