Consenting to California

by Ramesh Ponnuru

Conn Carroll is the rare conservative with a good word to say about California’s new affirmative-consent law:

Why on earth are we so concerned about protecting those who participate in the hook up culture? Shouldn’t we want to create an incentive structure for men that encourage them to invest in long-term emotional relationships with the women they want physical intimacy from?

The message the law sends to college men is simple: “Don’t engage in physical intimacy of any kind with any woman who has not already proven she cares for your emotional well-being.”

I am skeptical that the law will have the effect Carroll hopes it will.

First, the odds of being kicked off campus merely for engaging in casual sex will remain quite low. Probably most men seeking or about to have casual sex will take their chances (or, rather, assume that they aren’t taking any since they’re not doing anything terrible).

Second, I doubt it will be clear that the odds that a man will avoid a disciplinary hearing where he is presumed guilty are much lower if he has sex only within a committed relationship. Relationships can go very sour, in ways the parties to it can’t easily predict, and under the new law having been in one does not help establish that a sexual encounter was affirmatively consensual.

So I think Carroll exaggerates how much the law will improve the sexual culture on campus in the way he describes. There are, of course, other benefits to the law: If it reduces the amount of truly coerced sex that goes on, that would be a bigger one. But there will also be a big cost in unfairness to individual men who are kicked out of school and labeled sex offenders for engaging in behavior that a) doesn’t merit that response and b) does not typically receive it.

If campuses want to act against “the hook up culture,” I’m happy to hear it. I’d be happy to see the return of parietals. But I don’t think this law is a good way to combat it — which is not surprising, since most of its backers are not interested in combating it.

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