The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

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

Posted on | October 7, 2014 | 38 Comments

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 want.

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 feminists and the 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.





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  • JeffreyL

    Not unconstitutional. The future accused will not be charged with a crime, but with breaking an institutional policy of the college. The only penalties will be of access to the college facilities and education programs. While not unconstitutional, it may be in violation of certain Title IX requirements, but not sure. Will need to see how its implemented.

    All that being said, a truly stupid rule, but that is cali for you. Land of fruits and nuts.


  • Adobe_Walls

    In his reporting of this, Stephen Green wrote that when the time comes for either of this young children to attend college, going to any university in California would be out of the question. That’s a good policy for any parent when college time arrives. Hopefully that policy will become a national phenomenon.

  • RS

    Actually, your second sentence will only be correct with private colleges and universities. Anytime a governmental entity imposes a punishment of some sort, it is subject to constitutional due process requirements. Those include both procedural protections as well as substantive protections. California has opened itself, by way of its state colleges and universities to substantial exposure once this law is implemented.

    (Title IX is applicable to those institutions which take Federal funds. That is, pretty much all of them. Different cause of action; same premise.)

  • robertstacymccain

    But you see that it’s still a violation of constitutional rights, because the accused student is treated as if he has been tried and found guilty of a crime. The mere accusation effectively deprives him, within the context of the university, of his due-process rights, and I strongly doubt that the Supreme Court would view this as constitutionally valid.

  • RS

    Tangential to this, recall the Princeton mom who argued that college women should spend time seeking mates while they are in college. (Link) Her thesis is, smart women want smart men and college is the best place to find one. Query how these new draconian consent laws will effect what heretofore was a normal part of college for the vast, vast majority of students? Simply stated, the state has made the risk too high for men to attempt any sort of courtship on campus, no matter how benign that courtship might be.

  • Dan

    “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.”

    That’s not true at all. You can learn some great pointers on different techniques from watching porn films. I know I have. 🙂 And that can only add to your partners pleasure. And what do you mean replicate porn scripts? Trying out different positions, and roles is inherently problematic? For who? Anybody that needs to coerce someone into doing something they don’t want to because they watch porn vids is just being a jerk. I think Murphy overstates this idea. But she’s a feminist, so painting with a broad brush is what she does.

    I have occasionally floated certain ideas about things I want to try with a partner who perhaps never had such an experience, but I tend to leave it alone if I can see she’s clearly not into it.

    As far as the new laws in CA are concerned, they’re a terrible idea, completely unconstitutional, and really just social engineering at the hands of rad fems.

  • Dan

    So, how does it help victims of an actual sex crime if the worst that can happen to the perpetrator is to be kicked out of school? A criminal conviction for sexual assault already includes that. This is really just a way for feminists to try and change male behavior through threats, and create a climate of fear on college campus’s that they can rule over.

  • robertstacymccain

    “Trying out different positions, and roles is inherently problematic?”

    Trust me when I say that I had more or less exhausted the possibilities of “different positions” by the time I ever saw a porn video. You’d be surprised (or perhaps not) by how inventive people can be without benefit of porn-video instructions. Your claim that watching porn videos is necessary to sexual variety was disproven by direct experience at least 30 years ago. But otherwise, I plead the Fifth.

  • CrustyB

    The only things I learned about sex from porn is that you can’t have sex without white furniture and an electric guitar with a wah-wah pedal playing in the background.

  • Adobe_Walls

    Saving it for the book?

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  • Art Deco

    Multilayered evil.

  • alanhenderson

    The California legislature could use a few lacrosse-playing Duke University grads.

  • Dan

    For some people it’s been necessary for sexual variety, and many couples have claimed it has helped their sex life. My personal experience has nothing to do with porn teaching me variety, and more to do with(and not to get graphic, and respect the space)specific techniques in order to be a more formidable lover. That’s all Im going to say about it, too. Pornography, like any other form of entertainment, whether it be horror films, or video games is a negative depending on the person doing the viewing. In other words my experience of watching “Texas Chainsaw Massacre” will probably be far different than that of a diagnosed sociopath, or someone with a strong sadistic streak.

  • Dan

    or a mustache.

  • Kirby McCain

    I can see the sign now – UC Santa Barbara and underneath it a pink sign proclaiming “Enthusiastic Consent Zone.” False security, that would never deter the likes of Jesse Mathew.

  • Steve Skubinna

    Forget watching porn videos. You want action, get a job as a cable installer or pool man.

    Those guys get all the action. It’s well documented.

  • Steve Skubinna

    Rights? Phooey on rights. Don’t you realize that Utopia is within our grasp, all we need are a few more enlightened laws and prohibitions and we’re there!

    Well, that plus a bunch of rail cars and a gulag.

  • RKae

    Pizza delivery works well, too.

  • reliapundit


  • RobinDTaxpayer

    I am woman, hear me roar,
    My dialogue is such a bore…

  • concern00

    You appropriately lead this article with, “sexual assault is a crime.” When discussing rape, as a crime, it is often equated with manslaughter and even murder for its seriousness. Some countries even prosecute rape at the same levels as these crimes.

    All this bullsh*t about rape culture, the college rape epidemic and now this ludicrous affirmative assent law only serves to trivialize the seriousness of actual rape. I feel sorry for the true victims of rape, whose rightful victim-hood is being hijacked by a bunch of women who feel the need to reconcile their poor behavioral choices and then equate the associated poor outcomes with a serious crime.

  • Daniel Freeman

    When I was falsely accused in college twenty years ago, I made it very clear that if they treated it as “disciplinary” matter on the public record like a noise violation or whatever, then I would treat them as accomplices in her defamation of me. After patiently waiting for everyone else to say their part, I explained to the assistant dean that if they did that, I would sue not only my false accuser and the University, but also every single individual involved in assisting in the publication of her slander and/or libel. (I can never keep them straight; but if I ever needed to, I would be hiring a lawyer anyway, so I don’t care.)

    I think it was that final point that made the difference, since it was a private college, and assistant deans don’t have anything like a police union to help if they’re sued. Plus, “I was just obeying orders” is never a good excuse for wrongdoing — and civil court has just as low of a standard of evidence as colleges do.

  • K-Bob

    It’s gotta be a p0rn mustache, though.

  • K-Bob

    Hedge trimming is always good.

  • ChandlersGhost

    Which makes me wonder…Could UCSB have given Elliot Rodger a disciplinary hearing, thereby stopping him from murdering all of those people?

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  • Steve Skubinna

    Most law enforcement jurisdictions include “serious offenses against persons” as justification for use of deadly force. Rape is specifically included in this category.

    And yet we are expected to believe that we live in a “rape culture” when rape itself is grounds for deadly force. Any cop, or private citizen for that matter (depending upon a particular location’s firearms laws) may shoot a rapist and be legally in the clear.

    But we live in a rape culture.

  • K-Bob

    Best thing I ever did was tell my kids they should definitely go to college. And they should definitely pay for it. Just like I did, and just like my dad did.

    They both took some classes, and realized it was stupid to pay university fees for a degree when you can take any class you want at a community college that has no “campus life” to get involved in.

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  • Pointguard

    Au contraire – here are 44 cases where the men have alleged and in some case won verdicts that their constitutional rights have been violated:

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