Sex the Legal Way

I guess when I was a teenager, I was ahead of my time.

Back then I thought it would be disrespectful to kiss a girl unless she first told me she wanted me to. I quickly learned, though, that the rare girl who wanted me to kiss her preferred not to make a contract for it first.

Now, though, we are coming into the age of “yes means yes”—the notion that one may not initiate sexual contact without explicit consent. Thus are we proposing to criminalize the way people—both people—have chosen to mate for, I’ll guess, more than 10,000 years.

In an opinion piece in The New York Times, Judith Shulevitz explores the perils of new state laws making sex criminal if it isn’t preceded by positive agreement.

According to Shulevitz, the American Law Institute, a body that drafts model laws that legislatures often then enact, is in the thick of the debate. It is considering a model sexual assault law that would make criminal the touching of any body part for sexual gratification if affirmative consent did not come first. Critics of this proposed law illustrate their concern with this imaginary example:

Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).

Washington state and the other states that concern most of my clients—Oregon, Idaho, Montana, and Alaska—have not enacted such legislation yet, according to Affirmative Consent, a group advocating for it.

Meanwhile, Hanna Rosin of The Atlantic Monthly muses that sex on campus, where the “yes means yes” movement started, has become impossible. Students following their desires have always faced the risk of morning-after regret. But Rosin seems to think the stakes have now gotten too big to choose any course but celibacy.

Of course, just because people have always done something in a certain way does not mean they should continue to do it that way. Maybe we need to adjust our notions of romance to accommodate affirmative consent.

But if we do, criminal law is not the place to start. When we criminalize behavior that most people engage it, we give prosecutors a tool they will use against very few people and usually for a bad reason, such as racial prejudice.

Criminal law should reflect settled social norms. It should not attempt to establish new ones. It is too powerful a weapon for such a dicey project.