Remember When Liberals Were All About Keeping the Government Out of the Bedroom?

Yeah, neither do I.

Law professors Stephen J. Schulhofer and Erin Murphy are trying to update the criminal code when it comes to sex offenses, believing current definitions of rape and sexual assault are antiquated. The focus of their draft is on what constitutes consent. It adopts the "yes means yes," or "affirmative consent" model that was passed in California last year.

The California law applies only to college campuses, however. Schulhofer and Murphy aim to take that definition of consent — which says that before every escalation of a sexual encounter, clear and convincing consent must be given — to the state or federal level. No one actually has sex this way, requesting permission and having it granted perhaps a dozen times in a single encounter.

But the theory that millions of Americans are having sex wrongly has gained currency among campus activists. This new attempt to alter the American Law Institute's Model Penal Code, a highly influential document that has been adopted in whole or in part by many states' legislatures, is part of a push to bring authoritarianism into the bedroom.

I often argue that our political parties are not just internally inconsistent (ie they simultaneously hold positions whose logic essentially contradict themselves) but they are inconsistent across time.  This is a great example of the latter.


  1. Rob McMillin:

    I wrote a little something about this based on the publicly available draft back in January; it's basically a recipe for one half of the population to incarcerate the other at the merest of whims. If, as now seems increasingly likely, the War On Some Drugs winds down, in its place we will substitute rape charges substantiated by nothing more than accusation.

  2. Orion Henderson:

    Why hasn't anyone asked the authors of this paper if they in fact do things this way in their personal lives?

  3. Daublin:

    It's a tough nugget, but I don't see how just being tougher on rape is going to go well.

    The few people who I've talked to who've been in a rape situation do not lack for legal remedies. The problems they face are more about how to deal with the trial in general, and with having everyone they meet make an immediate mental connection to "oh you're the rape person". It's especially bad for male victims of rape.

    On top of the legal issues, it doesn't really solve all of the victim's difficulties to have the perpretrator behind bars. It's usually someone the victim knows, and they still have to deal with all the family and friends of that person. As well, the psychological effects are all around quite tough.

    There's also the small matter of what kind of culture we want to live in. Do we really want to live in a culture where people ask verbally each step of the way? The many people male and female I have talked to about that are unanimous in saying they want communication during sex to be mostly non-verbal.

    I don't want to oversimplify a difficult and important issue, but the primary changes that look helpful are not legal changes. There are cultural changes that would likely help, such as prolonging the dating period before taking someone home. As well, improvements in self defense would have obvious benefit. Maybe grade school schould drop the Latin classes and instead book kids for a few hours of Hapkido a week.

  4. Scott:

    I wonder if this is coming front the same people who taught me how to use a condom in 6th grade...

  5. Rob McMillin:

    I don't want to oversimplify a difficult and important issue, but the
    primary changes that look helpful are not legal changes. There are
    cultural changes that would likely help, such as prolonging the dating
    period before taking someone home.

    Or, you know, making sure the woman's on her meds. Or doesn't need them. #EmmaSulkowicz

  6. CT_Yankee:

    "Cry Wolf" as a government policy. Begin with mixing up petty "grabbed but while dancing" with "dragged into stairwell, raped, beat and bloodied" all under the same policy. A period of many falsely accused or socially inept people treated like hardened criminals will be followed by major criminals being treated as victims of the politically correct culture. This is the exact same thing that happens with the sex offenders lists, where someone who peed in the bushes or mooned the football game is on the exact same list as the violent rapist. The list, and the words, loose meaning, so we no longer know how to express what actually happened. Millions of younger Americans might be taken as an indication that millions of older Americans were able to read the reaction of a touch, and figure out what direction the hand slides.....

  7. Andrew Garland:

    Floyd Ferris, a bureaucrat in the novel Atlas Shrugged by Ayn Rand:
    === ===
    Did you really think that we want those laws to be observed? We want them broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against.

    The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them.

    One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone?

    But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted and you create a nation of law-breakers.
    === ===

    Our Progressives have embraced this. Identify an area of human interaction. Set rules, and most importantly, require documentation. This converts a law against bad actions by some people into an accounting requirement for all people.

    Accounting is difficult and intrusive, and will never be done to the specifications. It is laughable regarding sex, pats on the back, or hugs. Everyone becomes subject to prosecution for clear, illegal errors and omissions in accounting. "Prosecutorial Discretion" then allows punishing some people, but giving a pass to the politically favored.

    Permissions are unclear in a drunken sexual encounter. Even if the man claims that he asked permission for every act, it is still only one word against another. But, no one can credibly claim that he did the accounting while drunk, so the prosecutor can convict both, but chooses to convict only the man.

    In passing, this same technique is enslaving medicine. The Electronic Medical Record enslaves doctors by making them all subject to prosecution. They will all obey the detailed instructions of the Medical State. Independence is illegal as a practical matter.

    If you want to have sex in our Progressive future, you had best keep the receipts for your contributions to the Democratic party.

  8. Ike Pigott:

    Speaking of inconsistency...