November 01, 2006

What's wrong with Affirmative Consent Rules?

We have been discussing rape in my law school class and I've been surprised how resistant many people (particularly many men) are to the idea of affirmative consent laws. We have talked about a lot of different groups of actions that could be criminalized and categorized as rape or other crimes and it seemed to make sense to me logically that we should just say that you can't make someone have sex if they don't want to.

Then, I read an amazing analogy in my text book (Criminal Law and its Processes by Dadish and Schulhoffer 7 ed. p. 345, quoting Stephen J. Schulhofer, Taking Sexual Autonomy Seriously: Rape Law and Beyond, 11 Law & Phil. 35, 74-75 (1992).).

Consider this parable. A hospitalized athlete, suffering from chronic knee problems, consults a surgeon, who recommends an operation. The athlete is not sure. If the operation is successful, he will enjoy a long, fulfilling career with his team. But there are imponderables. The operation carries a risk of burdensome infection that can be hard to cure. The procedure may not produce the expected benefits. In any event, it is sure to be stressful in the short run. The athlete hesitates. There are clear advantages, clear disadvantages, and lots of uncertainties. What to do? Maybe he should postpone this big step for a while, see how things go without it. The surgeon is encouraging: “Try it. You’ll like it.” Still the athlete is unsure.

Now our surgeon becomes impatient. He has spent a lot of time with the case. The athlete’s hesitation is becoming tiresome and annoying. So the surgeon signals an anesthesiologist to ready the drugs that will flow through an intravenous tube already in place. One last time the surgeon (a sensitive, modern male) reminds the athlete, “You don’t have to go ahead with this. If you really want me to stop, just say so.” But the athlete, his brain still clouded with doubts, fears, hopes, and uncertainties, says nothing. So the surgeon starts the anesthesia and just does it.

Consent? Of course not. But why not? The athlete was not compelled to submit. Nobody forced him… Surely his silence proves that he was not unwilling. If he really objected, all he had to do was say so!

The author goes on to point out that we see the question about surgery as one about a patient’s autonomy. We require crystallized willingness in order to respect his autonomy. So why do you think people have so much trouble with the idea of affirmative consent for sex? (Note: Quite a few states have laws that say, basically, “no means no,” but only New Jersey to my knowledge requires affirmative consent by either words or action. Most states, my professor says, require either force or threat of force, and the traditional requirement is physical resistance in order for sex to be considered non-consensual. I’m not a lawyer so don’t take that as if I necessarily know what I’m talking about.)

4 comments:

freshman feminist said...

In Maryland, apparently, a woman can't withdraw consent after she has once given it. Basically, a man has a legal right to orgasm which temporarily overrides a woman's right to control what happens to her body, as well as her right not to experience pain.

This blog post links to the court resolution: http://pandagon.net/2006/11/01/year-2006-or-1906/

As it is pointed out in the comment thread, if you invite someone over and they refuse to leave after you order them to it's still trespassing, and if a woman were giving a man oral sex (which happens to still be illegal in Maryland, but that's another issue) and she started biting him and he wanted to stop it, I'm sure the male legislators would want to call that an assault of some kind.

narcissusfemme said...

Check out Feministe for extensive coverage and debate.

ayoungethan said...

thanks for posting this!

xkcd said...

Sex isn't triple bypass heart surgery; 99.9% of people are able to close their legs and forbid entry to anyone they don't want to enter their body.