Okay, so you think you’ve become the master of “Yes” means “Yes”.
You are careful to get not just affirmative consent, but indeed, enthusiastic consent for all your campus sex positive adventures. They are all sober: you test all your partners for drugs, alcohol and mental disorders beforehand and reject any that are suspect. You’ve got signed consent forms from your partner(s), living witnesses to the signing of the consent forms, video and audio records of the sex in both visible and infrared light, and living witnesses to the sex, some of whom watched while wearing infrared military-class gear. Your many partners are well satisfied and admit they consented to the sex of their own free will, and would happily do so again if they get the chance.
Here’s the question: are you now completely safe from a former sex partner who wants to get you thrown out of school and investigated for rape or sexual harassment?
Not even close, stud (or slut, as the case may be).
At least, not according to lawyer and rape-chaser Wendy Murphy. All your objective evidence of your concern for consent is meaningless; only the subjective opinion of the alleged victim will matter if Murphy gets her way.
I want to like Wendy Murphy. I really do. For one thing, she is smart and attractive, so much so that my favorite bunny boiler Amanda Marcotte openly hates her.
How smart is Murphy? She has concocted a novel way to bring you down: she is using the threat of a lawsuit to try to force the State University of New York to adopt a standard of guilt so extreme that your due process rights will become moot.
Murphy, who is a professor at the New England School of Law, said she has “insider” contacts at SUNY who will alert her when a sexual assault allegation is adjudicated using affirmative consent, since the cases are not publicized, and then she’ll sue, using a standard lawsuit she’s already prepared. – from CapitalNewYork.com
As I understand Murphy’s problem with the existing legal reasoning, to be actionable under federal law covering sexual harassment two conditions must be met: a violation occurs only when a sexual advance or inquiry is both objectively offensive, and when, subjectively, the object of the sexual advance feels that the advance was unwelcome.
Murphy believes this standard is flawed in the case of a campus rape claim because the “objectively offensive” clause is superfluous and only the subjective view of the alleged victim should count. In other words, your understanding of her consent is irrelevant; only her understanding matters. You are, in effect, guilty as soon as you are accused.
That is correct, kiddo: rape or harassment can occur in the private, unexpressed thoughts of the victim, even when the victim gives seemingly clear, objective consent to sex – according to Murphy.
While both criminal and civil laws on sexual consent recognize that people do consent to sex all the time, Murphy wants to co-opt a federal discrimination law standard covering racial and religious discrimination and apply it to sex.
The mistake Murphy is making is obvious: one can’t compare a dispute over consensual sex to one over “consensual racism” (if there could be such a thing) for the simple reason that almost 100% of sex is overtly consensual and 0% of racism is overtly consensual.
When we call into question every sex act in the same way we do every racist act, we are ignoring the fact that common racism is presumed wrong in ways that common sex is not – and shouldn’t be.
Federal law in the case of both workplace sexual harassment and Title IX works quite differently than laws on racism – unlike racism, a victim of sexual harassment (even via rape) has a larger duty to document and otherwise prove his or her case that he or she was harassed/raped, and the accused is allowed to present evidence that he or she had established consent.
Title IX requires an incident be evaluated for whether it was “unwelcome” and “offensive,” Murphy explained. Unwelcomeness is subjective, so it can be determined only by the victim; offensiveness is both subjective and objective, so it can be determined by the victim as well as observers – source.
A case study to illustrate the issues
Here’s an example from my own experience in the parallel case of workplace sexual harassment: I once had a female manager that I found to be quite unattractive: a balding, obese tobacco smoker about twice my age. I also knew she was conniving and hostile when you crossed her. She thought I reminded her of her ex-husband (or so she told me) and she made many flirty passes at me.
I welcomed none of those passes but since she was my boss, I tolerated them without an objection, because I feared an objection would cost me my job. She finally asked me out to dinner under the pretense of work. I declined but she insisted, so I reluctantly agreed. Things got much worse from there and soon I quit a job I otherwise loved.
I didn’t document her harassing me, nor did I complain about it until after I left the company. I could have built a great case but because I didn’t, I was out of luck.
Now, hypothetically, if Wendy Murphy’s understanding of discrimination law were somehow applied to my case, my subjective experience alone made my boss’s advances a case of sexual harassment, even though I did not clearly communicate my discomfort to my boss. All I would have to do is file a complaint and my harasser would be guilty.
Crucial to employment law is this: my female boss was in a position of power over me and thus should have refrained from making potentially discomfiting sexual advances toward me.
Can a boss then NEVER ask out an employee in the same way a boss should never use a racial epithet? Back in those days (and I think this is still the case), there was a general understanding let’s call “ask once”: since no one can be sure whether one’s sexual advances are welcome, one was allowed to ask for a date or sex once – and maybe only once – as a sort of “safe harbor” to allow for the possibility of consensual sex, but any further nagging could become harassment, as there would then be diminishing doubt that further requests were unwelcome. Contrast this with racism, which we can assume is never welcome or consensual.
Now, under feminist patriarchy theory, however, all men have power over all women, so Murphy plans to override both Title IX and “affirmative consent” to extend this principle to college students where no clear boss-employee power relationship exists: a male student just asking a female student on a date will become sexual harassment even if the woman enthusiastically seems to consent but in the privacy of her own thoughts finds the request unwelcome.
Murphy is planning to sue any school that considers anything other than the accuser’s mental state. You will now be convicted of sexual harassment and, indeed, rape, even if from an objective perspective(s), your partner consented. All that matters is if she subjectively found your attention “unwelcome” – even if she kept that a secret during the sex.
“The very first time that standard gets applied, the victim is going to say, why did you apply a tougher standard of affirmative consent to my case, therefore giving value to the offender’s alleged mistake, which is almost always a lie?” Murphy said. “Why did you give any weight to his claimed mistake? That’s not allowed under civil rights law. That can’t trump [my] subjective decision about my own body. The argument is going to be that you don’t apply affirmative consent to issues of racist violence on campus.” – source.
The answer should be obvious, your honor: you don’t treat sex like racism because two or more parties can and do consent to sex – and sometimes they even consent to violent sex. Two or more parties rarely (never) consent to racist violence.
But what if she wins?
But what if Murphy wins, and convinces a court that a subjective claim of rape should be as quickly and easily accepted as a subjective claim of racism would be?
This is why I want to like Murphy: if she succeeds the fallout will destroy both colleges and consent law in ways that I hope will force us to dump both federal interference and the abusive feminist monopoly on consent and give us a chance to come up with something better – like letting the police and courts do their job by respecting the due process rights of the accused. Murphy is weaponizing women’s sexuality: what was once a powerful tool to manipulate men is becoming a dangerous minefield designed to destroy them.
As more men recognize this, I expect the ranks of Men Going Their Own Way (MGTOW) and avoiding relationships with women will swell significantly.
If Murphy wins her lawsuits and nothing else changes, we have to ask: is there any legal way to protect yourself from your sexual partner’s hidden thoughts?
There is just one, but it is a highly speculative long shot I would never try except as the following thought experiment: consider the idea that you should get your partner blackout drunk AFTER the sex is complete. The plan is to wipe her memory to the point where she cannot remember whether your first or later overtures were welcome or not. You’ll then have proof she was sober during the sex but unless she lies, she cannot say for certain what her internal mental state was.
The principle is that since only her subjective thoughts count, you must muddle her memory of her thoughts to try to undermine her claims.
You’ll need to give her a blood alcohol test so your lawyer can challenge her memory of whether she welcomed your advances or not.
Luckily, there is no discrimination law (yet) against getting your partner drunk AFTER sex is complete, and you must be careful to do this with all your partners because you’ll never know which ones are harboring secret thoughts against you.
Reverse the genders
In an earlier article on affirmative consent, I argued that since women rarely ask overtly for consent, it follows that a gender-neutral law on consent had a huge theoretical potential to be used against sexually active campus feminist women. I caught a bit of flak in the comments of that article because readers found it implausible that the implied consent of a sexually participating man didn’t satisfy the higher standard of verbal affirmative consent called for in the California law.
Wendy Murphy’s contention – that a subjective consent standard on the part of the alleged victim should overrule all other considerations – does seem to support my contention that a seemingly overt but implied sexual consent does not establish actual consent (affirmative or otherwise) under the law.
If Murphy wins, does reversing the gender expectations create such possibilities of using them against campus feminists?
As the population of campus students approaches / exceeds 60% female, women are becoming more sexually aggressive than ever and one can argue that the few men remaining on campus are increasingly pressed to consent to their sexual advances. Both gynocentrism and the fear of being labeled as homosexual compel straight college men to just say yes, regardless of whether they find the sexual advances by women to be welcome or not.
And women do not take a “no” very well at all.
In cases where sexual consent is in dispute, the first one to report the incident is given legal protections and especially when a man is the victim, those protections are likely to be violated in ways that can be very lucrative to this victim once he files a civil case asking for damages from the college and the accused.
Have at it, guys. Just remember: document everything and file charges before she can.