The American right was at once mocked and feared by liberals for the scrutiny they devoted to the sex lives of average Americans. This impulse among conservatives culminated in George W. Bush’s administration’s unsuccessful attempt to enshrine heterosexual marriage into the U.S. Constitution.
The critiques of social conservatism in the last decade as prudish and meddling were well-founded, but that seems like a generation ago. As American conservatism continues to embrace a more libertarian view on those policies which relate to the policing of consensual relationships, the left has become consumed with supervising sexual activity and defining more and more of it as unconventional.
The primary means by which the left has co-opted the right’s monopoly on curbing private activity through legislation has been to expand the definition of the word rape to include activities that are more complex than sexual assault.
The state of California pioneered this process by codifying “affirmative consent” or “yes means yes” codes into law. “Lack of protest or resistance does not mean consent,” the text of the law read, “nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.”
In theory, this law protects college students – primarily young women – from being sexually assaulted while they are unable to consent actively to that activity. In practice, the adjudication of disputes surrounding an accusation of rape will now become infinitely more difficult. Moreover, the mere accusation of improper conduct has been elevated to a point where it nearly meets the evidentiary burden required to prove misconduct.
This problematic law is giving pause to even honest liberals concerned with the erosion of the Constitution’s protections of due process.
“A failure to procure ‘affirmative agreement’ means that sexual assault has taken place,” The New Republic’s Batya Ungar-Sargon wrote. “If that is the case, absent such affirmative signifiers, how exactly do you know whom to arrest?”
This analyst observed that these laws are, in a perverse way, paternalistic and anti-feminist. “Herein we find one of the most outrageous part of the bill: Its assumption of men as the initiators of sex acts, and women as their recipients,” she wrote.
A double standard is actually ratified into law whereby the phallus represents true, unmediated desire, while female desire must be interpolated through words. While the law must protect women from the inequality of force men have at their disposal, what is the utility of demanding that women require an extra level of mediation to signal desire, under conditions where no imbalance exists?
She is correct in this assumption. The law finds its logical basis in the assumption that defenseless women need added protections from predatory men whom, the left presumes, are granted undue deference by the criminal justice system (and its on-campus equivalent). “Yes means yes” laws are designed to reduce the process of courtship to an antiseptic and sober contractual negotiation akin to the dystopian interpersonal associations more at home in Yevgeny Zamyatin’s We.
The State of New Jersey has determined to take this expansion of the definition of rape to a new level. Beyond “affirmative consent” laws, The Garden State’s Democratic legislature has advanced a measure that would directly equate mendacity with rape.
“Earlier this month, Assemblyman Troy Singleton (D-Burlington) introduced the bill (A3908), which would create the crime of ‘sexual assault by fraud,’ which it defines as ‘an act of sexual penetration to which a person has given consent because the actor has misrepresented the purpose of the act or has represented he is someone he is not,’” NJ.com reported.
The issue of “rape-by-fraud” is the subject of a new book by New York City resident Joyce M. Short, who said she married a man who lied about his age, marital status, education and military service, among other things.
Short, who has met with Lewis, said, “(Jordan) hadn’t threatened her. Quite the contrary. He had seduced her. But he had seduced her through a hoax, through a fraudulent means. And just like Bernie Madoff is in prison because he stole money from people by defrauding them, someone can vitiate your knowing consent by defrauding you in order to have sex.”
Opponents of this measure suggest that it is plagued by the same problems that most affirmative consent measures suffer from, namely that there are few protections in place for the accused. “What if a man were to say to a woman ‘I love you’ and engage in sex and he really didn’t love her?” asked New Jersey criminal defense attorney Alan Zegas. “The definition is so broad that it doesn’t put the citizens of the state on fair notice of what it is that constitutes the crime.”
This hypothetical sounds absurd, but the law is written in such a way that this case could easily tie up court proceedings for weeks and consume all the taxpayer dollars associated with its operations.
Chillingly, NJ.com noted, some legal scholars including a quoted Yale Law professor note that most states reject defining rape as a result of successful deception, but “the case law is based on an outdated definition of rape that wasn’t really about the victim’s consent, but about her virtue.”
“Though deceived, she had willingly surrendered her virtue and thus could not claim rape,’” Yale Prof. Jed Rubenfeld wrote in 2013.
This law, too, should be perceived as anti-feminist by those who claim to champion women’s rights and their ability to serve as competent stewards of their affairs. Even though a woman acted willingly, this new law would stipulate, she did so only because she was misled and was thus robbed of agency. In both of the hypothetical insistences where NJ.com suggested this law might be applied, an individual engaged in intercourse under the presumption that person they with whom they were sleeping with was wealthy and would grant them some of their largess. This ancient and familiar behavior is already addressed in law.
In essence, these attempts to redefine conduct, and the nature of the word rape, are revolutionary. That is why they are doomed to fail.
Every revolution since the French Revolution has sought to redefine human nature and the relationships between people that determine the character of the state. Ultimately, they have all collapsed. It was only the American Revolution and its predecessors which sought as an end the codification into law of human nature as the philosophers of the Enlightenment observed it. The Founding Fathers did not try to change the character of man, but to create a system that would guard against its excesses and capitalize on its better angels.
The feminist revolution is today failing because it is trying though force and sheer coercion to reshape human nature. The damage that will be done to interpersonal relationships in the time in which it takes for their revolution to collapse is, however, nothing to take lightly.