The truth is that, except in the first flush of infatuation, both partners are rarely equally excited. At any given moment, one person wants sex more passionately than the other. What’s more, whether due to nurture or nature, there is usually a difference in tempo between men and women, with women generally requiring more “convincing.” And someone who requires convincing is not yet in a position to offer “affirmative” much less “enthusiastic” consent. That doesn’t mean that the final experience is unsatisfying — but it does mean that initially one has to be coaxed out of one’s comfort zone. Affirmative consent would criminalize that.
The reality is that much of sex is not consensual — but it is also not non-consensual. It resides in a gray area in between, where sexual experimentation and discovery happen. Sex is inherently dangerous. There will be misadventures when these experiments sometimes go wrong. Looking back, it can be hard to assign blame by ascertaining whether both partners genuinely consented. Indeed, trying to shoehorn sex into a strict, yes-and-no consent framework in an attempt to make it risk free can’t help but destroy it.
Jonathan Chait questions how much an affirmative consent law could accomplish:
It surely is possible to imagine that sex that comports with these new guidelines is sexy, or even more sexy than the kind most people have now. Yet one might find these ideas about reimagining sex attractive, as I do, while still having deep reservations about codifying them into law.
The fact that we need to change cultural attitudes about sex itself underscores the fact that cultural attitudes about sex lie well outside the contours established by the state of California. What percentage of the last decade worth of Hollywood sex scenes, if acted out between college students in California, would technically constitute rape? A majority? Ninety percent?
Deprogramming and reorienting societal ideas about sex is an evolutionary process. California isn’t merely attempting to set out to nudge the culture in this direction. It is reclassifying all sex that falls outside those still-novel ideas as rape. A law premised on this sort of sweeping, wholesale change is likely to fail.
Meanwhile, Danielle Citron argues that more laws are needed to deal with another area of sexual activity:
Why is it legal in many jurisdictions to disclose a person’s nude image in violation of that person’s expectation of privacy? A combination of factors is at work. One stems from the public’s ignorance about so-called revenge porn. As brave individuals have come forward to tell their stories, we are only now beginning to understand how prevalent and damaging revenge porn can be.
Another reason is that society has a poor track record addressing harms primarily suffered by women. It was an uphill battle to get domestic violence and workplace sexual harassment recognized as serious issues. Because revenge porn impacts women far more frequently than men and creates far more serious consequences for them, it is another harm that society is willing to minimize, trivialize, and tolerate. Although most people today would recoil at the suggestion that a woman’s consent to sleep with one man can be taken as consent to sleep with his friends, this is the very logic of revenge porn apologists.