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Barb Wire

Why California’s ‘Affirmative Consent’ Law Violates Basic Constitutional Rights


Sexual assault is a crime.

Rape is not a school disciplinary infraction, and the attempt by universities to set up a pseudo-judicial system to deal with accusations of sexual assault was always a dubious endeavor. What college administrators have done, in their effort to appease feminists, is to establish phony “courts” where people can be “convicted” of very serious crimes without the due process rights guaranteed under the Constitution.

Notice that California’s new law pertains to a specific category of crime (sexual assault) committed by a specific category of offenders (college students) in a specific place (the college campus). There was apparently no need, in the eyes of California legislators, for new laws changing the standards of proof required to convict someone of theft, robbery or drug possession. Nor does the new California law affect high school students. And a college student accused of rape retains all his constitutional rights, so long as the accusation relates to sex that takes place somewhere outside the campus setting. That is to say, if a student at Cal-Berkeley goes to a Shattuck Avenue bar, where he picks up the waitress who takes him back to her apartment, their intimacies are not regulated by the regime of “affimative consent” so long as (a) the waitress is not also a Cal-Berkeley student and (b) her apartment is not on campus.

To put it as bluntly as possible, the new California law treats college students like an inferior caste. It’s the New Jim Crow, and this law will eventually be challenged in court as a violation of students’ basic constitutional rights. Meanwhile, Jonah Goldberg observes the dishonest rhetoric of the new law’s feminist advocates:

Some defenders of the law say it doesn’t really matter because it will only have an effect when women accuse men of sexual assault. “The law has no bearing on the vast majority of sexual encounters,” feminist writer Amanda Marcotte reassures us. “It only applies when a student files a sexual assault complaint.”

Never mind that it will also likely change the standard of proof in such situations, making it much easier to charge — and administratively convict — students of rape based solely on an allegation. Don’t worry about false accusations, says Think Progress’ Tara Culp-Ressler, they amount to only “about 2% to 8% of cases.” Tell that to people who fall into the 2% to 8%.

Other defenders insist that such concerns miss the point. Ann Friedman of New York magazine rhapsodizes about the law’s positive cultural impact. It will help in “deprogramming the idea that nice girls don’t admit they like sex, let alone talk about how they like it.” She notes that the “law will force universities to talk to all students, female and male, about how enthusiastic consent is mandatory.” And that is great because “Confirming consent leads to much hotter sex.”

You can read the whole thing. The question we need to be asking, however, is how did we get here? What has happened — other than orchestrated activism by campus feminists — that has led to this point? When and why did university administrators begin to treat claims of sexual assault as something distinct from any other crime that might occur on campus? If somebody steals a student’s laptop, call the police. If somebody breaks out the window of a student’s car, call the police. However, if a student says she has been sexually assaulted by a fellow student, we can’t call the police. No, say the administrators, in such cases we must convene a university disciplinary proceeding where the accused rapist does not have the due-process rights normally accorded to criminal defendants. And when this unusual extra-judicial treatment of sexual assault cases fails to produce results that satisfy feminists, evidently, the legislature must then enact laws regulating the specifics of “consent” in campus environments.

The Bottom Line of ‘Affirmative Consent’

What’s really happening here? When you see something happening that seems so inexplicable from a common-sense perspective, you need to ask yourself what is being omitted from the discussion. This “extraordinarily intrusive” effort to “micromanage sex,” as the Los Angeles Times described the California law, must be a reaction to something that nobody wants to talk about.

The new law requires a verbal “yes” at every stage of intimacy, right? Now, let us imagine the situation in which a student says “yes” to X, then says “yes” to Y, but says “no” to Z. In the matter of X and Y, she was enthusiastically consenting. However, when her partner wanted to do Z, she said “no” — and her partner did Z anyway, so that he is now accused of sexual assault. Question: What is Z?

Must we pretend ignorance about what is going on among young people nowadays? Are adults supposed to pretend that they don’t know how a porn-saturated hyper-sexualized culture has influenced the appetites, habits and attitudes of hedonistic youth?

Do you think we’re stupid? Do you mean to insult our intelligence?

Surprise! Teen girls are having anal sex
because they’re being pressured into it

That column by feminist Meghan Murphy deserves careful scrutiny by anyone who really wants to understand how damaged and grotesque sexual culture has become in the 21st century. And we can perceive how it relates to the “affirmative consent” regime that California’s new law has established for college students.

Really, did anyone ever believe that all this noise about “consent” was a result of normal sex between college boys and girls? Were we expected to believe that horny teenage college girls who got drunk at parties and hooked up with teenage college boys were making accusations of sexual assault because of normal sex? Because she only wanted to go to third base and he “stole home?” No, I don’t think that’s it at all.

She’s drunk, he’s drunk, they go back to his place, and a “home run” is the intended outcome. However, the guy’s appetites have been influenced by his porn habits, so that normal intercourse isn’t enough for him. No, he’s seen enough sick videos to believe that the Ultimate Sex Act involves imposing a particularly traumatic degradation on a woman.

She’s drunk enough to agree to a random hook-up, you see, but she doesn’t realize that he is drunk enough to think he can act out the wildest scenes he’s been watching on Internet porn videos. And, furthermore, he has been conditioned to believe this — the Ultimate Sex Act, painful as it may be for her — is what she really wants.

Here, let Meghan Murphy explain this problem in a real-life context:

My first boyfriend was [angry] that I wouldn’t have anal sex with him. Not just because he, you know, wanted to try out all the super sexy things he’d learned watching porn, but because I’d done it before — with other guys who weren’t him. No fair, amirite?

The fact that the whole, entire reason I wouldn’t have anal sex with him was because I’d tried it already with a couple of other guys and the experience ranged from completely boring and unpleasurable to extremely painful eluded him. My pleasure wasn’t the point. The point was 1) No fair, wah! (i.e. why did other men “get” something he didn’t), 2) The thought of emulating something he masturbated to in porn turned him on, 3) Possible pleasure for him — the idea that it’s “tighter” or some sh*t. (HA. Anal sex puns, you guys!)

No matter how you do the math, all points add up to barf.

You can read the whole thing, and we should be grateful to Ms. Murphy for her frank (if personally embarrassing) explanation of what’s really happening among our sexually adventurous youth. There is a “monkey see, monkey do” emulation factor involved in the way pornographic videos have invaded the erotic imagination of many young people (and not-so-young people), especially in the 20 years since Al Gore invented the Internet. Whereas 40 or 50 years ago, magazines like Playboy merely offered images of females as “sex objects” — satisfying curiosity as to what the naked female body looked like, celebrating a certain ideal of what women should look like, and encouraging the attitude that females were sexual commodities in a marketplace for male consumption — the widespread availability of porn video provides a sexual script of what men should do with these female objects.

Scripting the Erotic Imagination

The Feminist Confessional Narrative form employed by Ms. Murphy cannot be used by men, and any man is a fool to think he can try it. Nobody is interested in the male perspective on sex, and any man who thinks he can co-opt the True Confessions style used by feminists is merely providing the rope with which his executioners will hang him. However, I will waive my Fifth Amendment right against self-incrimination to a limited extent, to say that I never suffered from a lack of imagination. That is to say, when beholding the female body — clothed or naked, in real life or in a media image — I never needed anyone to provide me with a script. A basic biological understanding was all I ever needed to write my own scripts. Thus, the first time anybody showed me a porn video (a VHS tape, circa 1985, when I was in my mid-20s), my reaction was, “Meh.” Nothing on that videotape really interested me because (a) my imagination was far more creative, and (b) my real-life flesh-and-blood sexual experiences were far more enjoyable than being a spectator to phony scenes performed by strangers.

Porn freaks just don’t have enough imagination; they have developed a mental habit of being sexual spectators; their erotic imaginations are warped by their porn habits; and all attempts to replicate porn scripts in real life are inherently problematic.

During the “Sex Wars” between rival feminist factions in the late 1970s and early 1980s, the issue of pornography was central to the dispute. Radical feminists contended that pornography was inherently degrading to women, and specifically contended that pornography was implicated in rape and child molestation. The opposition — so-called “pro-sex feminists” — insisted that pornography was harmless and, indeed, it was claimed that pornography is empowering to women, and that we could not condemn porn without impeding women’s liberation. In that particular dispute, conservatives actually supported the radical feminists. For a brief moment in the 1980s, Andrea Dworkin and Jerry Falwell were de facto allies, and Attorney General Ed Meese was on the same side as Catharine MacKinnon.

The radical feminists who were defeated in the “Sex Wars” have told their side of the story in various places (see, e.g., the collection of essays The Sexual Liberals and the Attack on Feminism edited by Dorchen Leidholdt and Janice Raymond), but neither the radicals nor their “pro-sex” antagonists (nor most conservative critics of feminism) have explained what happened in the 1980s and why it happened. Simply put, the majority of feminists have always viewed the traditional family — the married mom and dad with children — as their primary enemy, and are willing to fight that enemy By Any Means Necessary. When the “Sex Wars” erupted in the late 1970s, many feminists were willing to defend pornography because they understood how pornographic culture subverts the basic moral values associated with the traditional family. Feminists must view porn as “liberating” (i.e., hostile to marriage and motherhood) and if porn results in harm to women? They don’t care.

Furthermore, and this has been insufficiently appreciated, many feminist leaders during the “Sex Wars” were (as many feminist leaders still are and always have been) lesbians. This meant that there was an alliance between the feminist and gay-rights movement that ultimately trumped whatever concerns feminists might have had about the impact of pornography on women.

The compulsive promiscuity and extreme perversion typical of gay male culture could not be robustly defended if the radical feminist arguments about the degradation of pornography were taken seriously. By an accident of history (which was perhaps less accidental than it seems) the feminist “Sex Wars” overlapped the AIDS crisis, during which homosexual activists fought against public-health measures to shut down the gay bathhouses that provided the commercial venues within which the AIDS epidemic had been incubated. (See, e.g., Randy Shilts, And the Band Played On, as well as “A Radical Holocaust” in Destructive Generation by Peter Collier and David Horowitz.) You see that feminists could not logically argue for shutting down pornographic peep shows while at the same time supporting the arguments in favor of keeping open the bathhouses that facilitated anonymous gay promiscuity.

The anti-porn radicals were defeated in the “Sex Wars,” because normalizing homosexuality was ultimately more important to the feminist cause than protecting the health and safety of women.

The Real Trouble and the Phony ‘Epidemic’

Once you understand what happened in the 1980s — and not just what happened, but why it happened, and how the “Sex Wars” were rooted in the inherent contradictions of the Left’s 1960s rhetoric about sexual liberation and sexual equality — you gain a new perspective on what has happened in the past 30 years, and what is happening now.

Are we really surprised that the proliferation of online pornography has inspired a vogue of anal sex among heterosexuals? Are we really surprised that teenage girls report that they are being pressured into this painful, unsanitary and abnormal activity? And are we really surprised that, in reaction to phony claims of a “rape epidemic” on campus, that California has enacted a law that requires “affirmative consent” to each sexual act between two student partners?

Do you need me to draw you a diagram?

The connection between pornography and sex trouble on college campuses is quite real, even if the “rape epidemic” is not.

However, because people are afraid to have an honest conversation about all the factors involved — pornography, promiscuity, underage alcohol abuse, and especially feminism’s anti-male/anti-heterosexual ideology — we cannot address the problem in a common-sense way that would actually make things better. We cannot speak the truth, because feminism is committed to a war against human nature.

Truth is silenced, constitutional rights are infringed, and we are now hurrying toward the gates of Hell by the most direct route.

Oh, look: The Tenth Amendment has been voided by court decree.

First published at


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