Michael Bauser Is Losing His Mind
CNN's Anderson Cooper 360° had a segment on "sexual consent contracts" last night. (The topic was so jaw-dropping insane that I waited until they put the episode's transcript online before I wrote about it, because I was afraid I might have misheard something.) The idea of such contracts (according to CNN's favorite sexologist, Ava Cadell) is that two individuals intending to have sex will sign the contract, thus preventing one party from accusing the other of date rape afterwards. This is proposed as the solution to the "he said, she said" dilemma that occurs whenever acquaintance rape cases (especially celebrity date rape cases) go to court.
Dr. Cadell claims that such contracts are becoming common, and that some universities are encouraging students to consider using such forms. I find this a disturbing idea, because I'm pretty sure sexual consent forms won't really stop rapes or false accusations.
I am not philosophically opposed to one-night stands, casual sex, or any of that other stuff. I am opposed to sexual consent contracts, because they're not going to protect anybody, and giving people a false sense of protection encourages them to not protect themselves.
Take a look at sexual consent form on Dr. Cadell's website. It has two main features: a checklist of what sexual acts the parties are agreeing to beforehand (including a checkbox for "unilateral copulation", a phrase I hope becomes insanely popular someday), and the staggeringly dangerous statement:
I further declare that I am at this time not under the influence of alcohol drugs or medication and agree to engage in consensual sex with ________ and to not change my mind before the sex act is over. (emphasis added)
Even if it had a proper distribution of commas, that last sentence would defy all legal logic, because it attempts to nullify a person's right to withdraw consent. Without taking a survey, I can be sure that millions of people have started a sexual encounter thinking it was a good idea, then changed their mind at some point. Under the usual "No means no" doctrine of acquaintance rape, an aggressor's refusal to acknowledge the withdrawal of consent constitutes rape. In other words, a woman always has the right to change her mind. The literal interpretation of this this "consent form" is that that signees don't have that right.
So, if a woman changes her mind about having sex with a man, he's got a piece of paper saying it's OK to force her. Congratulations, Dr. Cadell, if this contract is legally binding, you've just created a license to rape.
Fortunately (for victims), these contracts aren't legally binding, because U.S. courts have consistently ruled that the right to refuse consent is not a right women can sign away. (That's one of the reasons husbands aren't allowed to rape their wives anymore.) In fact, some courts have gone so far as to equate consent-limiting contracts with prostitution or slavery.
This, on the other hand, is bad news for anybody who thinks that sexual consent form will protect them from accusations of date rape, because the contract doesn't prove that the second party didn't change her mind during the sexual encounter. These contracts don't legally protect either participant.
Posted at 11:51:47 PM EST on 26 November 2003 from Trenton, MI