“Affirmative Consent.” Better Known as “Consent.”
Suppose I want to borrow a friend’s car. So here’s what I do: I wait till my friend gets really stinking drunk. Like, goofy drunk. I bring him a few more Bloody Marys to help it along. Then I half-walk, half-carry my drunk-ass friend home. When we get to his house, I let him in the door, and drag his unresisting drunk self over to the hook where he keeps the car keys. He’s still in party mode. He’s screaming “YEEAAAH!! BROOOO!” in response to basically everything I say. He can hardly stand up straight. I set him down on the couch and say “dude, you mind if I take these?” while pointing at the car keys. He’s continuing to babble senselessly. I take the car and drive off.
Has he loaned me the car?
(Does it matter whether I was drunk too?)
Ok, now I want to borrow a different friend’s car. And this friend doesn’t drink. Woah, how am I going to get drove without the help of booze?
But, you know what, I have reason to believe this friend is a little timid. So what I do, is I invite myself over to his house. I knock on the door, he opens it, and I walk right in. He looks a little uncomfortable already, but I ignore that. Instead, I walk straight over to the car keys, and I take them. He starts to stammer out something like “what are you doing?” but I just talk over him. “I’m taking your car” I say, as I walk out the door. “Uuuhh,” he starts to say, then falls silent. I take the car and drive off.
Has he loaned me the car?
Right. New friend, new car. This one is a bit more assertive, but a notoriously bad communicator. So I actually ask this time: “bro, can I borrow your car?” He says, “well, I’m not sure.” I say, “dude, come on, just let me borrow your car.” He says, “let me think about it.” I say, “what’s there to think about? I gotta have the car! What are you, some kind of tease?” He says, “maybe, gimme a minute to think.” I take the car keys, walk out, and drive off.
Has he loaned me the car?
Ok, now I find another friend. And I actually ask that friend if I can borrow his car, when he’s awake, and sober, and not currently being intimidated by anyone. And he says “yes.” We didn’t really talk about how long I could borrow the car for. It’s the start of a three-day weekend. On Sunday night, my friend calls me up. “Buddy,” he says, “I need the car back; my boss just said I’ve gotta go in to work tomorrow.” “You tease,” I say, “you can’t just let me borrow the car and then take it back just when I’m starting to have fun driving it. I’m not finished with it.” I keep the car for three more days.
For those last three days, has he loaned me the car?
I’ve got one friend left. (For some weird reason, none of the rest are talking to me.) Again, I actually ask this one if I can borrow the car, and he actually says “yes,” and looks like he means it, and I drive off in it. I finish what I need to do, and I bring it back. I say “thanks man, you did me a solid.” He says “no prob, anytime.” The next day, when he’s at work, I go back to his house, open the door, and take the car.
The second time around, has he loaned me the car?
If you know the answers to those questions, you understand the notion of affirmative consent.
Wouldn’t it be weird if there was a special area of law where having that kind of consent rule was some kind of scary novelty that lots of people kick and scream and fight about?
Wouldn’t it be even weirder if actual lawyers joined in the kicking and screaming and fighting, even though we have literally (not figuratively literally, actually literally literally) centuries of experience as a profession in determining whether people actually consented to something, even though we spend most of the first year in law school studying situations where consent is basically the whole question, even though the idea of affirmative consent, under its ordinary name, “consent,” is shot through the whole Anglo-American common law tradition, from contract law to tort law to criminal law to property law, and even though in almost no situation in any of those fields “s/he didn’t fight back” or “s/he didn’t actually say no” or “I got him/her nice and drunk first” constitutes consent?
Yeah, I think so too. See also.
