2015-11-09

Zwolinski's Affirmative Consent Red Herring

Over at a website called LearnLiberty.org, Matt Zwolinski has a piece defending recent California legislation that would revoke state funding to institutions of higher learning if those institutions did not add "affirmative consent" language to their sexual assault policies.

In his defense of "affirmative consent," Zwolinski highlights three scenarios in which "no means no" is an insufficient policy because, in some cases, victims of sexual assault cannot say no (footnote omitted for brevity - click through to view it):
Intoxicated: After consuming a significant amount of alcohol in A’s presence, B passes out on the couch. A then undresses B and has sexual intercourse with her. 
Afraid: A and B meet in a bar and go back to A’s apartment. B rebuffs A’s advances. A smiles at B and says, “Look, you’re alone with someone you don’t know, who’s much bigger and stronger, and, for all you know, has beaten and raped several women. Maybe I’m not as nice as I seem.” B is very frightened by A’s remarks and does not resist A’s advances.* 
Incapable: B is a 19 year-old woman suffering from a severe intellectual disability, with an IQ of 59. A is aware of B’s condition, and begins to play a “touching game” with B, involving mutual undressing and touching of genital areas. B engages in this activity without protest.
There's only one problem: All three of Zwolinski's examples are already violations of the "no means no" guideline and existing sexual assault laws. Zwolinski has argued a red herring - nobody who opposes the new California Senate Bill disputes the illegality of any of the above scenarios under current law.

So how does identifying three indisputable violations of an existing law build a case for a new law about new guidelines? It doesn't.

Zwolinski spends the bulk of his article defending the moral validity of the concept of affirmative consent, and on that I definitely do not disagree with him. But who does? As far as I can tell, no one. This amounts to a second red herring - who are all these people who don't feel that they need affirmative consent during a sexual encounter? Who is Zwolinski arguing against, exactly?

There is one final problem with this senate bill, one that Zwolinski suspiciously does not mention in his defense of it: The law holds universities responsible for enforcing affirmative consent policies, even though affirmative consent doctrine is not actually part of the legal definition of consent. Thus, universities' enforcement of this policy presents two threats to democracy.

The first is the fact that the legal definition of consent can be changed without direct legislation to that affect. The senate bill doesn't change the law about sexual assault, it changes the law about publicly funded institutions of higher learning. It requires that universities adopt a certain guideline - one that is different from the exact letter of the law, and one which both Zwolinski and the bill's proponents expect the university to enforce on its studentbody.

Which brings me to the law's second threat to democracy: It turns university administrations into quasi-judicial bodies expected to investigate, try, and enforce sexual assault cases extra-legally. The problem here isn't merely that the law turns universities into judge, jury, and executioner (although, it does). The problem is that all of this is happening without due process of LAW.

For the life of me, I cannot understand why a self-professed libertarian would think this kind of legislation would be an overall improvement to liberty. Perhaps Zwolinski will at some point clarify his thinking here. Right now, though, I just don't get it.