Hi CD:

I certainly agree that, culturally, we’ve imposed a ton of complexity on sex that makes some of these judgments harder to make. But it also seems to me that the brunt of the cases that people who oppose affirmative consent standards worry about are more like my easy call examples than yours — there seems to be this serious idea that taking off a semi-stranger’s clothes when they’re too drunk to stand should be seen as normal behavior, or that when people are initiating sex they’re entitled not to notice behavior that anyone in any other context would immediately recognize as scared and intimidated acquiescence rather than actual consent. And that’s really what I’m trying to resist.

I’d actually say that your extension of my car example is a fairly straightforward example of (actual, affirmative) consent — and I’d be really surprised if people thought differently in the sexual context. To be sure, sex is harder, but is it that much harder in a broad array of cases? I’m not so sure. “Affirmative” need not mean “express.” There are lots of human communicative interactions where it’s obvious that someone actually consents, even though they don’t use their words to indicate it; I think a properly implemented affirmative consent standard would count those as consent too. (Now, you might object, “but properly implemented is too hard.” If that’s true, it’s a serious problem with the standard, but it’s not the problem that opponents of the standard usually focus on, and it’s one that might be amenable to other kinds of solutions, like training and education.)

Maybe I’m too optimistic about our ability to make this kind of judgment in the legal system? I don’t think I am — as you point out, juries do manage to make nuanced analyses like this about consent in property contexts (unless you think they systematically screw them up?).

And at bottom, I think that’s really my point: as humans — and especially as lawyers, but also fundamentally as humans — we navigate questions of consent all the time, and we do a pretty decent job of working out whether or not someone has really agreed to something on a day to day basis in a wide array of contexts. Figuring out whether someone has actually agreed to something is an ordinary cognitive operation, and it’s really bizarre that in the sex context all of a sudden it’s supposed to be a huge burden to ask people to figure out if the person they propose to have sex with really wants to do it?