Affirmative Consent—less than meets the eye

The idea of requiring “affirmative consent” to sex has garnered much attention and debate, here on prawfs (take 2, take 3, and take 4) and elsewhere. 

In a series of posts, I want to “unpack” the concept of affirmative consent and see what, if anything, is there. 

My basic claim is this:  there is much less substance to affirmative consent than almost everyone seems to assume.  Most “affirmative consent” standards represent, at most, a very minor alteration of existing consent standards.  (That observation might be either a criticism or a defense of the concept, depending on your priors.) 

As a substantive legal standard, it does not achieve much in the way of reform, and likewise it does not create much in the way of risk of over-criminalizing conduct that many view as permissible.  Many of the proponents and opponents of affirmative consent share the same faulty premise—that affirmative consent is a radical new departure from existing law.  It is not.

I will focus on proposed and existing substantive legal standards for affirmative consent, rather than the procedural rules that are used.  Of course procedure is extremely important (sometimes more important than the substantive rule), and some of the criticism of recent reforms falling under the “affirmative consent” banner are largely procedural critiques.  My focus will be on the substantive standard, putting procedure to one side.