If you are pro-choice, you should be wary of sexual ‘affirmative consent’ laws


Anyone who’s been following the news lately knows that there is a wave of state laws severely restricting access to abortion. Alabama’s law has garnered the most attention, but many states are considering new laws that restrict abortions, such as “heartbeat” bills, which prohibit abortions once there is. has a fetal heartbeat. It can be as early as six weeks after the onset of pregnancy. There is even a push for new laws, like that of Alabama, which do not include the exceptions for rape and incest.

Such laws clearly contradict key Supreme Court decisions on abortion rights, including Roe v. Wade and Casey v. Planned Parenthood of Pennsylvania. While President Trump’s two new court appointments have given life advocates hope those rulings will be overturned, many jurists do not think the court is ready for such a radical turn. Unless the Supreme Court overturns decades of their own rulings, lower courts have no choice but to overturn these new laws. Just this week, a federal judge in Mississippi overturned that state’s restrictive new law, using unusually harsh language. Furthermore, a number of prosecutors have said they will not apply restrictions on abortion which they say are unconstitutional.

Therefore, the battle over abortion may well turn to less drastic, but still very significant restrictions on abortion access that do not directly contradict Supreme Court rulings. An important example of this kind of law is mandatory ultrasound laws that many states have already passed. Many of these laws not only require women to have forced ultrasounds, but also to listen to the fetal heartbeat. Some also require multiple medical visits and also include waiting periods after the ultrasound.

There is a heated debate over whether or not these laws are constitutional. A sharply divided federal appeals court last month overturned a lower court ruling that barred Kentucky from enforcing its mandatory ultrasound law.

Laws of this type are often referred to as “informed consent laws”. The idea is that before a woman can have an abortion, she must make an informed decision to have it. This means that she should see the ultrasound and hear the fetal heartbeat so that she understands what she is aborting.

These laws are challenged in the courts, which are divided on the issue. However, those pushing for these laws can get help from an unexpected shift – advocates of “affirmative consent laws” that expand the definition of sexual assault for college students. California and New York both have affirmative consent laws for students, which are often described as “yes means yes” laws.

These laws go beyond simply requiring both parties to subjectively consent to sexual activity. They require that for each stage of sexual intimacy, both partners openly manifest their consent before this activity takes place. It is not clear whether such consent must always be verbal, nor is it clear what nonverbal behavior constitutes sufficient consent.

One message cannot discuss all of the many issues surrounding affirmative consent. For here it should be emphasized that affirmative consent redefines what consent normally means. In almost all areas of law, consent is defined by the “reasonable person” test. If a reasonable person would have thought that Mr. Jones had agreed to let him into Mr. Jones ‘property, then that person did not trespass even though they entered Mr. Jones’ property without his consent. subjective. The same rule applies if I borrow your car or grab your arm during a fun wrestling match.

Affirmative consent laws restrict the ways in which we can consent to sexual activity. Under the usual law, I can tell you that you can borrow my car every Sunday to go to church. Under affirmative consent laws, you should get my unequivocal and overt approval every Sunday to borrow the car. If you don’t, you become a car thief.

To give a concrete example, under the normal definition of consent, if a couple is in a sexual relationship, a reasonable person would probably assume that they have consented to kiss the other person while they sleep, especially after a night of consent. sexual activity. But not under affirmative consent laws. Here is a real case from Massachusetts, Doe v. Brandeis:

The case involved two male college students who, for twenty-one months, were “in a romantic and sexual relationship”. About six months after the relationship ended, one student, JC, accused the other, John, of sexual misconduct. The college found John responsible for various forms of sexual misconduct, including “sexual violence” by waking JC up with kisses while they were in bed together. The federal judge ruled that Brandeis had taken the meaning of sexual violence too far:

“The findings of the Special Examiner regarding the ‘kissing’ incidents are particularly noteworthy. The Special Examiner concluded that John sometimes woke JC up with kisses and sometimes continued to try to kiss him after JC said he wanted to go back to sleep. She further concluded that these actions were acts of “violence”. To achieve this, she essentially sewn up a series of general generalizations: kissing is a sexual activity; a sleeping person is physically incapable and therefore cannot give consent; the existence of a relationship is irrelevant for consent; sexual activity without consent is sexual misconduct; Sexual misconduct is a form of violence – to come to a conclusion that seems at odds with common sense and ordinary meanings and definitions of words.

The problem with what Brandeis did isn’t necessarily his conclusion that kissing can be a form of sexual violence. If someone pins other people to a wall and forcibly kisses them, it is obviously a sexual assault. The problem, as the judge repeatedly pointed out, is that Brandeis ignored the context. If you wake up next to your boyfriend or girlfriend (or spouse) after a night of consensual sex activity and wake them up with kisses, it’s just not the same as nailing a stranger to a wall and force a kiss on that person.

This refusal to distinguish between assaulting a stranger and sexually touching someone with whom you have a sexual relationship and with whom you have developed an understanding of relevance is undoubtedly well-intentioned. No one wants to go back to the days when marriage was an authorization for rape. And having sex is no excuse for sexual assault. Nonetheless, there must be a path between these extremes. As the federal judge wrote in the Brandeis case:

“In short, the existence of a relationship was unquestionably a central issue in assessing John’s behavior and resolving the issue of consent. The existence of a relationship did not immunize John from the consequences of any inappropriate behavior. But neither should it have been dismissed out of hand simply on the basis of a broad generalization that sexual misconduct can and does occur in the context of a relationship.

This brings us back to laws restricting access to abortion. Many of these laws, like those described above, are based on a narrower definition of consent. A woman can only truly consent to an abortion if she has seen the ultrasound, listened to the heartbeat, waited a certain number of days, and so on. This logic is very similar to affirmative consent. The way a woman consents to sexual activity must be restricted in order to protect her. Advocates of laws restricting access to abortion can sometimes look a lot like advocates for affirmative consent. They will talk about power differences based on gender and how women are sometimes put under undue pressure from the man who made them pregnant to terminate their pregnancy. Restrictive laws are designed to ensure that her consent is genuine and not the product of male pressure.

Of course, it’s important to make sure that no one engages in sexual activity or has an abortion without actually consenting to it. But the ability to decide consent for oneself is the hallmark of being a full and equal citizen. The reasonable person test is the norm in law and the government should not have too much power to narrow the definition of consent on a case-by-case basis. This is also true for both sides of the political spectrum.

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