Affirmative Consent Law: "Invading Bodies" and Disputed Sex Acts

Judge Carol McCoy
"The judge found that the university unlawfully limited the plaintiff's right to cross-examine the primary witness against him, namely, the female student who had accused him of sexual assault. According to the university's procedures, a student who is accused of sexual assault does not cross-examine the complainant directly, but rather, submits his questions to the chair of the disciplinary panel that is conducting the hearing, who asks the questions on behalf of the accused. In this case, the accused student submitted 31 questions for possible cross-examination of the complainant, but the chair asked only 9 of them." 

          - Court Ruling on Affirmative Consent Case at UCSD

"Mr. Dixon did describe behaviors that he believed indicated [the female trainer's] affirmative consent during both incidents. He stated that he believed there was affirmative consent because she was "Lip biting, moaning, kissing me back on my neck type thing." He also stated that he believed she indicated affirmative consent by lying naked on the bed while he put on the condom."

          - Overturn of Affirmative Consent Conviction by Los Angeles Superior Court

"Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation..."

          - Boston Globe Article re Sexual Assault Policy at Harvard

"The UTC Chancellor improperly shifted the burden of proof and imposed an untenable standard upon Mr. Mock to disprove the accusation that he forcibly assaulted Ms. Morris. He made no finding that Ms. Morris did not consent, intertwined the definition in SOC 7 of sexual assault and sexual misconduct, and made no distinction as to which acts had occurred."

         - Judge Carol McCoy on Reversing An Affirmative Consent Conviction

"At every stage of every physical relationship, the “perpetrator” is at risk with no safe harbor of any type. If the initiator got positive agreement “sufficient to show affirmative permission” (Discussion Draft No. 2, Substantive Material, at 54) to initiate a kiss, the initiator is still at risk because the accuser can always counter by asserting, “I didn’t say you could kiss me that way.” If the initiator got positive agreement “sufficient to show affirmative permission” and did the kiss the right way, the initiator is still at risk with the next identical kiss because, “I didn’t say you could kiss me twice.” The draft acknowledges that its standard “requires the fact finder to focus on the existence of consent regarding each of the disputed sex acts.” Id. and Section 213.0(3)."

          - American Law Institute Members In Opposition to The Affirmative Consent Penal Code

"Here is a rich irony to chew on: At a time when women's political, social, physical, and especially economic powers are at a 10,000-year high, a movement to regulate sexual intercourse in this country is growing, fueled by the notion that contemporary women can't say "no."

          - Copulemus in Pace

"Grounding women’s emancipation, sexual and otherwise, on such a sweeping use of criminal punishment and civil incapacitation (e.g., expulsion from college with a transcript marking one as a sexual wrongdoer)  has led feminist reformers to take several stances typically thought to be hallmarks of social conservatism.  They are seeking social control through punitive and repressive deployments of state power.  They are criminalizing as a first rather than a last resort to achieving social change.  They are affirming indifference to the punishment of innocent conduct. They have moved well to the right of civil-liberties-oriented liberalism in their advocacy for swift and sure punishment unimpeded by due process restraints."

        - Janet Halley

Let's cut to the chase with this issue of "affirmative consent" and the laws it has spawned now taking root in America and growing like unconstitutional weeds from the sex-negative feminist earth. But make no mistake, I'm a feminist, and have considered myself such for a long, long time. I choose sex when I wish. No one crawls into bed with me without my consent. Are you kidding? I am an independent and strong personality, and no one pushes me around. I've fought for women's rights. Having said this, I am not caving in to this new wave of intense, witch-pointing bullying on the part of certain "feminist" groups who are now on news programs and social media calling anyone and everyone a "rape apologist" or "anti-woman" or part of the "war on women" if they don't fully agree with the intent and legal mechanics of affirmative consent and those particular laws that have come into being (and threaten to generate) as a result.

One of affirmative consent's new and foremost spokespersons, Gloria Steinhem--who gives us the now standard marketing pitch for the woman-body-saving rule of "Yes Means Yes," better known as "affirmative consent"--hopes that it will counteract the ongoing "patriarchal" circumstance of "invading bodies." In other words, Gloria (and I am very disappointed by her), and her new affirmative consent associates, are attempting to cajole me into rethinking most of my entire sex life in terms of what they now view as criminal sexual assault. As Gloria says:
Until now, this has been the state of affairs in our nation’s laws on sexual assault. Invading bodies has been taken less seriously by the law than invading private property, even though body-invasion is far more traumatic. This has remained an unspoken bias of patriarchal law. After all, women were property until very recently. In some countries, they still are.
(just to jump in here for a second--you'll learn below that "invading bodies" is code for anything from a behavior as innocuous as a casual hand hold to full blown coitus thrusting)
Even in America, women’s human right to make decisions about their own bodies remains controversial, especially when it comes to sex and reproduction. Until [California passed SB 967], the prevailing standard has been “no means no.” If she says no (or, more liberally, indicates any resistance with her body), then the sex is seen as nonconsensual. That is, it’s rape. Under such a standard, the enormous gray area between “yes” and “no” is defined residually as “yes”: Unless one hears an explicit “no,” consent is implied. “Yes means yes” completely redefines that gray area. Silence is not consent; it is the absence of consent. Only an explicit “yes” can be considered consent.
The goddess has spoken. Only "an explicit yes" is consent. Gloria seems to see affirmative consent as this glorious new sexy thing (read the article until the end), and sure, it could be, just like at the end of Ulysses by Joyce. Yes, yes, yes, and yes, and yes!  But what is the dark side of affirmative consent?

What about the devil in the sexy details that Gloria isn't talking about?

Should I be traumatized now?
Let me ruminate: So all that sex I willingly had and encouraged, according to Gloria, wasn't consented to at all because I had not issued forth with an explicit "yes" after "yes" after "yes." I don't know whether to giggle or be traumatized. Should I be traumatized? Would that be politically correct? Come to think of it, who can't look back in time based on this new value thrust upon us by Gloria and the affirmative consent club and imagine scores and scores of sexual assaults or rapes taking place because we didn't say the word "yes" again and again and again. A new standard, a new viewpoint, a fresh way to be perpetually victimized. Whenever I didn't want sex I just said "no," but I didn't have to say no, as it turns out. I could have said nothing and my silence would have made all my partners into sex criminals.

Think about it, you guys. Just because we didn't say "no" to Bob or Frank ten years ago, just because we silently enjoyed the sex and participated in the act, as well as encouraged it with non-verbal communication, doesn't mean that we were not raped. We were! As of the advent of affirmative consent, we are all supplied with an indefinite amount of opportunities to conceive ourselves, past tense, as victims of sexual assault. Really, it's like having a buffet of sexual assault memory to choose from.
As of the advent of affirmative consent, we are all supplied with an indefinite amount of opportunities to conceive ourselves, past tense, as victims of sexual assault.
The ability for us to engage in such fuck-the-patriarchy or time-for-payback mind games are given special significance by the model sex crime penal code of Stephen Schulhofer of NYU law. Btw, Gloria's language of "invading bodies" above is very very close to the affirmative consent language used by Schulhofer to market and pitch his own version of affirmative consent law to anyone who will listen. Together with certain people in the American Law Institute, Schulhofer is pushing his version of a new America, one wherein "invading bodies" are exterminated by federal and state prison sentences, i.e., hard time behind bars for alleged perps, not to mention sex offender registration, ruined lives, etc. I've written about this perversion of law that turns every act of sex, and every sub-act thereof (including a cheek kiss or pat on the shoulder), into a potential sex crime.

However, Professor Schulhofer diverges from Gloria Steinem on the matter of consent equaling only an "explicit yes." He notes in his penal code--that will criminalize the sexual behavior of millions of Americans, not just college students--that consent can actually be given in non-verbal form. But he stops short of defining it. I wonder why? Seriously, is that fair to the thousands yet to be accused? Rather, he leaves it up to the defense attorney and prosecutor to debate in a court of law--or in a college student's case, he leaves it up to the members of college sex tribunal (the college student is routinely denied legal counsel, or counsel is prohibited from speech during the proceedings).

In effect then, Schulhofer's penal code, as well as affirmative consent law in California and New York, allows nonverbal consent to be whatever the alleged victim and prosecuting entity want it to be. Consider. The accused affirmative-consent sex criminal in college is effectively disallowed from defining nonverbal consent, even in the absence of a clear legal definition. Only his or her accusers have this privilege. To all intents and purposes, he or she is at the mercy of an utterly Kafkaesque circumstance. They can only present their viewpoint regarding what they believed to be consent while the sex crime tribunal at their college decides whether or not their perception of nonverbal consent will be allowed (who wants to take bets?). However, if the alleged victim counters at the time that XYZ behavior wasn't actually consent, in her mind, then the alleged perpetrator is theoretically left without a defense.
The accused affirmative-consent sex criminal in college is effectively disallowed from defining nonverbal consent, even in the absence of a clear legal definition. Only his or her accusers have this privilege. To all intents and purposes, he or she is at the mercy of an utterly Kafkaesque circumstance.
It is my belief, based on the evidence at hand, that the purpose of the college sex tribunal is to do one thing and one thing only: CONVICT. One might say the whole thing is rigged. But then again, doesn't it have to be? Given the reality of judging alleged sex crime perpetrators in order to find them "guilty" using affirmative consent standards forces the process to transmogrify into just the type of Kafkaesque circumstances now occurring in college sex tribunals. Negating constitutionally mandated due process is just one example. The recent court cases below speak to this very loudly.

Three recent court cases in Tennessee and California (UC San Diego and  summation / USC Decision) have vigorously overturned affirmative consent convictions and deemed the college sex tribunal process that props it to be unconstitutional. In fact, the process is so heavily biased towards the accused that it disallows (him) from even questioning the accuser (who sits behind a screen and won't take questions--ostensibly for the purpose of avoiding further trauma). Everyone gets to be automatically so traumatized in college sex tribunal hearings that the accused is effectively hamstrung and dependent on a hostile panel to communicate on his behalf. You would think the presumption of trauma would be tested by a psychological screening test or evaluation of some type by a professional prior to denying the accused his rights--after all, someone who has waited many weeks or several months before bothering to file a sex crime complaint until after she sees her ex-boyfriend with another woman isn't that likely to be so traumatized or capable of being induced to trauma that the accused must inevitably be denied his constitutional right to face his accuser.
One might say the whole thing is rigged. But then again, doesn't it have to be? Given the reality of judging alleged sex crime perpetrators in order to find them "guilty" using affirmative consent standards forces the process to transmogrify into just the type of Kafkaesque circumstance now occurring in college sex tribunals.
Also, btw, the accused under affirmative consent law is obligated to disprove the accusation(s) against him. Impossible, of course, and unconstitutional. But as we know, feminist law philosophy rejects law as infected with patriarchal bias and "unreasonable" from a feminist point of view that wishes to dethrone the patriarchal tyrants who wrote the law in the first place (I wonder if that applies to old divorce torts that favor the woman?).

Therefore, every feminist from Gloria to Eleanor Smeal and beyond is basically coming down against law as we know it. They want serious jail-time penal codes (see Schulhofer and Murphy at ALI) that provide sure and lasting punishment for the accused who must be deprived of "patriarchal" due process in order for their affirmative consent shredding machine to work properly.


'Affirmative Consent' Will Make Rape Laws Worse ...

'Affirmative Consent' Will Make Rape Laws Worse. Megan McArdle. 549 Jul 1, 2015 4:40 PM EDT. By Megan McArdle. a; A. The "tough on crime" posture is ...

California SB 967 makes 'affirmative consent' law -

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Jul 28, 2015 - Affirmative consent is a knowing, voluntary and mutual decision among ... New York's law standardizes prevention and response policies and ...

Bill Text - SB-967 Student safety: sexual assault.

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Existing law requires the governing boards of each community college district, the ... anaffirmative consent standard in the determination of whether consent was ...

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Cuomo Signs Affirmative Consent College Sexual Assault Bill Into Law. Reuters. Posted: 07/07/2015 2:03 pm EDT Updated: 07/08/2015 4:59 pm EDT. CUOMO ...

Affirmative Consent Laws (Yes Means Yes) State by State ...

Affirmative Consent laws state by state. As state colleges and legislatures enact yes means yes and affirmative consent policy - we'll track it here.

What 'Affirmative Consent' Actually Means | ThinkProgress

Jun 25, 2014 - Affirmative consent isn't based on the idea that every sexual ... that California's proposed law isn't that groundbreaking on the collegiate level.

How Affirmative Consent Laws Criminalize Everyone

Mar 30, 2015 - Affirmative consent laws trivialize sexual assault by turning nearly everyone who has ever dated into a sexual offender. For example, if a ...

An Appalling Case for Affirmative-Consent Laws - The Atlantic

The Atlantic
Oct 16, 2014 - They're also the value judgments that Ezra Klein invokes in his endorsement of a California law requiring affirmative consent for sex on the ...

The Affirmative Consent Standard & Rape / Sexual Assault ...

The Affirmative Consent Standard - You Must Receive a Verbal "Yes" ... Presentation by Dr. Harry Brod, a leader in the pro-feminist men's movement .... that generatepositive, measurable outcomes in populations throughout the world.

What 'Affirmative Consent' Actually Means | ThinkProgress

Jun 25, 2014 - Affirmative consent isn't based on the idea that every sexual encounter is a rigid ... The current societal script on sex assumes that passivity and silence ... It's a state,” feminist writer Jaclyn Friedman, who wrote a book on ...

[PDF]“hands off”: sex, feminism, affirmative consent, and the law ...

USC Gould School of Law
by DAN SUBOTNIK - ‎Cited by 12 - ‎Related articles
See KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR, AND FEMINISM ON .... and defendant adduced no positive evidence of consent, he could be con-.

Sex Is Serious | Boston Review

Jan 12, 2015 - Christian conservatives and some feminists agree that sex must not come with .... But would feminist defenders of affirmative consent ethics say the same? ..... It could, however, have negative consequences, including ...

No, California's new affirmative consent law will not redefine ...

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Oct 10, 2014 - But what precisely got Joy's pretty pink "consent is sexy" panties knotted ... when one partner is reluctant and hasn't offered "affirmative consent.

Affirmative Consent As Legal Standard? | - Yes Means Yes

Mar 19, 2010 - When feminists talk in moral terms about rape, many of us talk about ... I'm certainly not the first person to think that affirmative consent ought to work detracts from the positive impact that such a restructuring could have ...

Doctor Brod makes up his own law and demands an explicit "Yes" from us all or else he's going to huff and puff and flunk us for the semester. "You can't trust body language. It's dangerous!"


All sex, even consensual sex between a married couple, is an act of violence perpetrated against a woman - Catherine Mackinnon

Katie Mac took time off from her busy schedule preaching hate and venom at Harvard to step out on the town. She looks both sexy and elegant.

I wonder if she had the ability to freely choose her own clothing in a world ruled by the patriarchy?


Law Professor Stephen J. Schulhofer of NYU and His Sidekick Professor Erin Murphy Have Decided to Radically Change The Way America Conducts Its Sex Life by Inventing New Sex Crimes and Hard Time Prison Sentences to Enforce Them

"Most people just aren’t very talkative during the delicate tango that precedes sex, and the re-education required to make them more forthcoming would be a very big project. Nor are people unerringly good at decoding sexual signals. If they were, we wouldn’t have romantic comedies. “If there’s no social consensus about what the lines are,” says Nancy Gertner, a senior lecturer at Harvard Law School and a retired judge, then affirmative consent “has no business being in the criminal law."

                          - New York Times

"They do not intend to make sexual intercourse impossible to construe as an innocent act. But this would be the consequence of their draft. Any act of sex in which permission is not repeatedly requested and granted would put at least one of the parties, usually men, in legal jeopardy. Absent the repeated "May I…?" and affirmative responses, any woman could later have her partner locked up over unexpressed mental reservations. Men could make the same accusations. No one who opposes this legal change argues that consent is unnecessary. But the "yes means yes" standard is so stringent that it would criminalize millions of Americans overnight unless no one reports them."

                         - Washington Examiner

"My primary concern is with the drafting of the substantive crimes... this revised Model Penal Code, at least if the draft continues in its present form, is likely to be famous for its dramatic expansion in the criminalization of sexual activity, including codification in the revised MPC of a number of new sexual crimes that have not previously been recognized by any jurisdiction... This proposal appears based on the view of the Reporters (Schulhofer and Murphy) set forth in the second paragraph of their introductory note that the criminal law "must often be called upon to help shape social norms by communicating effectively the conditions under which commonplace or seemingly innocuous behavior can be unacceptably abusive or dangerous." I believe any attempt to criminalize "common place" or "seemingly innocuous" behavior in order to "shape social norms" needs to be examined carefully by the ALI membership."

                         - Laird Kirkpatrick, Professor of Law, GMU 

At every stage of every physical relationship, the “perpetrator” is at risk with no safe harbor of any type. If the initiator got positive agreement “sufficient to show affirmative permission” (Discussion Draft No. 2, Substantive Material, at 54) to initiate a kiss, the initiator is still at risk because the accuser can always counter by asserting, “I didn’t say you could kiss me that way.” If the initiator got positive agreement “sufficient to show affirmative permission” and did the kiss the right way, the initiator is still at risk with the next identical kiss because, “I didn’t say you could kiss me twice.” The draft acknowledges that its standard “requires the fact finder to focus on the existence of consent regarding each of the disputed sex acts.” Id. and Section 213.0(3).

                         ALI Members and Advisers In Opposition to The Model Penal Code

The Masters and Johnson of NYU Law?
So these two people on the left one day got together and decided they should labor to reshape the social norms of America even though America didn't appoint them to do it or even ask them to do it. And if I didn't know these two were distinguished law professors at NYU I might be inclined to suspect a taint of sociopath-like personality coupled with ambitious narcissism and bolstered by a subconscious bitterness towards those who have satisfactory sex lives. But I can't analyze these two. They might well be the new sex crime heroes we will come to worship in the future and erect on pedestals across from the White House to replace that silly sex criminal Andrew Jackson. All I can say now is: what the shlafkeyt devil is wrong with Professor Stephen J. Schulhofer, not to mention his stone-faced Irish sidekick in sex-crime fighting, Professor Erin Murphy? 

Might we say that cold legal wolves have been put in charge of the post-coitus hen house? Well, if human beings with anxiety-free sex lives are the hens, then Professor Stephen J. Schuldofer and Professor Erin Murphy might well be the wolves. But not according to their marketing webpage at NYU that summarizes their activities in a very positive light for all Americans to see:

"Schulhofer is also working with Professor Murphy to revise the sexual assault provisions of the American Law Institute’s (ALI) Model Penal Code, written more than 50 years ago, to meet a more modern understanding of sexual behavior and transgression."

A more modern understanding of sexual behavior? So Schulhofer and Murphy are law professors at NYU who BTW just happen to be experts on human sexual behavior? Like a modern day Masters and Johnson? Who are they kidding? It's funny but I can't discover any proof of that claim. And while we're at it, do these NYU law professors have sex at all? And why do I ask? I'm just wondering if they have actually road tested their proposed draconian affirmative-consent laws on themselves in order to test for all the potential points in an act of sex whereby the sex can be transmogrified immediately into an act of transgression punishable by their new laws. In other words, with any act of sex, does not a potential sex crime lay in wait behind every turn?  It does. Let's hear what law professor and human sexual behavior expert Erin Murphy has to say:

“We’re trying to really break apart the different ways in which unwanted sex occurs, and match that with the level of punishment,” Murphy says.

Hmmm, okay. Trying to "break apart" the "different ways" in which "unwanted" sex occurs
Working For An Old Testament God?
and match that with the "level of punishment." Does anyone besides me find this statement by this Erin Murphy law professor person to be more than a little scary? Was she appointed by a God of the Old Testament? When will stoning be a remedy? Sure a lot cheaper than years of incarceration. 

So how to determine what actually constitutes "affirmative consent" in Erin's mind so we won't default to acts of sex "unwanted" in Erin's mind and therefore go straight from Erin's mind to her thoughtful solution of years in a prison cell and all the benefits that accompany that including sex offender registration, ruined life, unemployment, etc. And let's make no mistake. We are talking about locking up potentially tens of thousands of people (most likely 99% men), married or no, who are normally law abiding good people, but who under Professor Schulhofer and Professor Murphy's new sex-crime laws perhaps have made the one life destroying mistake of not obtaining the correct form of "affirmative consent" at some point in the process leading to intercourse--whether or not intercourse was actually achieved.

And if you don't think that is bad enough, hold on to your seat. The life destroying mistake could be made without any intent of intercourse from the onset. What the common folk see as an innocent touch of almost any kind is fraught with jeopardy. Murphy attempts to play this down when she says, "“There is a caricature that consent must be equated to a verbal yes, but of course we know that much sexual intimacy happens without people saying a word, with just gestures and removal of clothing and other welcoming behaviors.”

Which One Is Committing the Sex Crime?
Yes, Erin, we already know that. So why do we need the sword of your new penal code (or should we say, "penile code") hanging over our heads to cajole us into exhibiting the precise same behavior? However, under your new sex crime laws (requiring zero proof on the part of the accuser), we both know that an alleged perp facing a prosecutor in real Kafkaesque court of your new America will have no means of proving he (or she) obtained "affirmative consent" no matter what form it took. He cannot prove "gestures and removal of clothing" ever occurred much less explicitly communicated that sex was permissible. He cannot prove he didn't break your gloriously fair and just penal code. How could he? Of course, you already know that, don't you? You're not stupid, law professor Erin Murphy. In your new America, the court will favor the accuser in such cases no matter how many days or weeks or months later the accusation is made. Out come the cuffs, swing wide the bars of prison. It will all be so easy.

By the way, dear reader, is Professor Erin Murphy saying above that a state of "sexual intimacy" precludes the need for continuous acts of stage-based affirmative consent during the sex act? No, she isn't. There is the catch folks. And btw, is this really all about protecting victims from transgressors or is it about the bestowing the incredible power of no-fault-no-proof-necessary accusation that will flow like a mighty man-slamming torrent? What rapture and bliss. A nation filled with tens if not hundreds of thousands flinging accusations with wild abandon! Accusations of all kinds, under a myriad of circumstances, some of them carefully pondered for weeks or months. Professor Erin's new penal code practically enshrines the "false positive." Imagine a man on his knees begging his date or wife or girlfriend not to turn him in, or make a false accusation that will surely ruin him.

What about blackmail while we're at it? Far fetched? Really? Any more so than the reality of this hateful penal code in the first place? According to sensible opponents in the American Law Institute who disagree strongly with Professor Erin, they present this horror show example that her new penal code would bring about as sure as the sun sets in the west:
"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."
By the way, Professor Erin, in this ever changing world of women becoming more sexually aggressive, did you know studies show that even males are now reporting unwanted sexual advances in ever increasing numbers? So, um, sure you want to keep pushing your new penal code? Suppose your sister or one of your friends ended up on the wrong side of prison steel due to your efforts? Your ridiculously inclusive definitions that criminalize “touching” and shifting burdens of proof to the accused will have catastrophic consequences in this country. Another thing, have you ever read studies of sexual intimacy, well here a number of them. Please read and reconsider your punitive whiplashes. We don't need armed men with guns and handcuffs to reshape the social norms on your behalf.

Btw, can you prove, Erin, that you weren't breaking your own proposed code last night? Will your relationship(s) be immune to your new penal code? We both know the answer to that, don't we, dear? Because we all know that sex will suck when a man has to get permission for every move we WANT HIM TO MAKE in order to cancel any ambiguity because he can't read our minds every second.

Now, let's talk about Professor Stephen Schulhofer's book that started all this many years ago:
"His proposals for a radically different approach hold the promise of genuine respect and effective protection for the sexual autonomy of both women and men. It is an ambitious yet sensible vision, committed to allowing willing partners to seek consensual relationships, while fully protecting each person’s right to refuse sexual encounters that are not genuinely desired."

- "Unwanted Sex - The Culture of Intimidation and the Failure of Law
                          by Professor Stephen J. Schulhofer

Ambitious yet sensible vision... That's funny. Because I always thought I already possessed the right to refuse sexual encounters not desired. Now I realize I couldn't have had that right until granted to me by Professor Stephen J. Schulhofer of NYU... But wait a minute, he actually hasn't granted it to me yet, but he wants to. He so wants to grant me the right he believes I don't already have that he'll write and promote to the American Law Institute his own salvo of new sex crime laws that will positively slam into prison for five years or more any male "sex offender" who dared not get my "affirmative consent" before reaching for my hand or even patting me on the shoulder--even if sex wasn't intended.

So will I press charges against this hypothetical John Doe in the sex crime-ridden land of Professor Stephen Schulhofer's new America if I get a chance, or won't I? So many choices, and plenty of time for me to consider it. Maybe John could pay me not to accuse?... No, I'd rather he do some time. Course, if John does pay me that is just further proof of his guilt. I get the money and he still hangs. And if the local prison is too full, we might have to consider a lesser charge. Hell, at least list him on a sex offender registry and make him do a few thousand hours of community service. Perhaps the county mental facility could house him for a year or two. That'll teach the bastard for violating my sexual autonomy by kissing me on the forehead that day after my father died!

Does the above sound absurd? Yes. But unbelievable in the new America refinished by the stripper and polish of Stephen and Erin's new penal code? Not at all. These crusaders of NYU Law are on a mission. They wish to revolutionize the sexual mores of American culture. Maybe they should even have their own televison show: NYU LAW - The Affirmative Consent Unit.

Btw, here is info and a video of our two sex crime fighters speaking thoughtfully about their new penal code without giving specifics as to what "sex crimes," according to their viewpoint, should trigger lengthy prison terms. Naturally, they completely avoid the thorny issues noted above, glossing it all over with summary statements, and with good reason:

Delineating "Yes" :Stephen Schulhofer and Erin Murphy are revising the Model Penal Code on sexual assault

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Section 213.4 of His Model Penal Code for Sexual Assault and Subsequent Discussion of The Real Act of Sex vs. The Schulhofer View of Sex as an Act of Perpetual Aggression

Logic flaws and unrealistic sex scenarios leading to a mistaken view of how the majority of people engage in sex and how they should be punished until they do it correctly.

Healthy Sex is Not an Act of Ceaseless Predation
First of all, in order to help justify his sweeping sex crime code that will apply to a majority of the human population, Stephen J. Schulhofer of NYU must use extreme examples that apply to a fraction of a percent of that population. For example, he wishes to establish stages of ongoing "affirmative consent" for every "level" of sex leading potentially to coitus. As an example of the dire need he sees for sexual micromanagement to prevent the serious abuse of "sexual autonomy" he unveils the existence of "frozen fright," a state he alleges to mimic consent. In his own footnote it states, "social science data [indicates] some women become frozen with fear at the onset of sexual attack and thus cannot resist." No study is offered as proof, no statistics provided, no quotes from psychologists of any stripe, but the key word here is "attack." Schulhofer time and time again equates normal sexual play with "attack" or the potential of "attack."

He notes "the harm of unwanted sexual imposition" and sees the potential of it everywhere he looks, and during every phase and level of the sex act. He states, "The harm of unwanted sexual imposition greatly exceeds any harm entailed in having to make arguable awkward efforts to clarify the situation..." Unwanted Sexual Imposition (USI). Let's keep in mind that Stephen J. Schulhofer of NYU appears to believe that USI is ubiquitous in normal sexual relations between women and men and his remedy is punishment for all. BTW, we're not treated to an explanation of "harm" since specificity might require proof of "harm" in the form of studies or statistics. In truth, there are no studies that show "harm" in his newly invented scenarios of USI, only harm from authentic sexual assault.

Stephen J. Schulhofer of NYU next acknowledges that the "sexually aggressive partner" (whoever that may be at any given point in time during the encounter) must cease the sex act (if need be, time and time again) and attempt to ascertain whether or not, for example, a hand in a certain place on his or her partner's body will be acceptable to the partner who presumably, at that moment, might not be displaying the signs of "affirmative consent" (as yet defined) thus leading to Schulhofer's trigger of sudden USI. Going further, he states "a person may consent to one form of sexual intimacy and yet decline others, and engaging in one type of intimacy should not necessarily be treated as permission to engage in others." This is where we wonder whether or not this man has ever engaged in what the rest of us regard as normal sex. Has he?

Going even further (and this is where it gets even more scary), Stephen J. Schulhofer of NYU demands that each "new act of intimacy" (which he fails to define) cannot be carried out without threat of his Schulhofer Trigger (immediate or delayed accusation, arrest and prosecution) unless and until "the sexually more aggressive party ensures that each new act is welcome and desired."

Only just before that statement he made clear that verbal assent was not necessary, so how is the "sexually aggressive party" (not defining what he means precisely by this--which makes you wonder what kind of sex Schulhofer has accomplished if he thinks this makes any sense) to obtain and/or verify consent or assent, and in such a manner so as not to pull the Schulhofer Trigger? Schulhofer won't tell us.

Making the assumption of a "sexually aggressive" Partner is one mistake; failure to define "sexually aggressive" is another; failure to precisely define "consent" in the absence of a verbal statement is also a mistake on his part. Then he goes on to add: "a prosecutor's burden is to prove beyond a reasonable doubt that no affirmative words or conduct by the complainant constituted, in light of the totality of the circumstances, positive agreement to engage in the specific conduct at issue."

This is too abstract. At least list a few examples of the conduct in question. Moving from caressing the breast to the nipple perhaps? Moving the lips from the neck to the shoulder? What are we talking about, Stephen J. Schulhofer of NYU?  And what about this "conduct" thing? Does he rule out sexual sounds (moans, groans ahhhs, etc) and spoken words of desire and/or gratification as legal consent? Does he rule out sexual body response as affirmative consent? No. He is just quiet on the subject. He purposely leaves it to the imagination of his so-called aggressor to juggle the potentials and proceed with a risk of a ruined life hanging over his or her head.

Not very fair is it? Actually, on the most basic level, his penal code would potentially make all sex utterly joyless and unsatisfactory. And is that what he really wants? Is that what he and others who support him really want?

Professor Stephen J. Schulhofer of NYU could at least give us a long list of behaviors that might be considered as offering the kind of satisfactory affirmative consent that would disallow prosecution and jail time. But he can't. Why? We know why. For every sexual behavior he might list, his own sex-hating law logic could effectively negate them all. All behaviors, in Professor Schulhofer's mind, are attended by a "there might be a circumstance in which" and "this presumed consent does not necessarily signal further consent" and so forth. We can clearly see that there is not a single behavior a human being could make that would signal a definitive act of affirmative and irreversible consent according to Stephen J. Schulhofer of NYU.

Schulhofer then adds, "... when a complainant's behavior has been passive--neither expressly inviting nor rebuking the defendant's sexual advances, that behavior cannot be considered sufficient to show affirmative permission." So how precisely does the partner, in order to not invite victimhood and the Schulhofer Trigger of doom, "expressly invite" the other partner to engage in any particular subset of sexual act during the process of the ongoing sexual act? And since the "sexual aggressor" can vary or actually oscillate from A to B and back again, who is doing the inviting at what point and who is seeking permission? In a normal sexual step-by-step build, the roles Professor Stephen J. Schulhofer of NYU sees as so distinct are in reality not distinct at all, but in continuous flux.

But what the heck. He'll just leave it to the prosecutors to work out!

Again, what kind of sex did he have or has he experienced that enables these sex crime scenarios? Did he watch violent porn videos? Lifetime Channel? In reality, there does not have to be an "aggressor" much less an "attack" or "abuse." It's an interesting and dark look into Schulhofer's psyche to discover he views normal sex in such negative and frightening terms. It sounds as if his version, or vision, of sex has involved just the sort of anxiety and borderline terror he guards against with such zealotry in his model penal code.