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How the overbroad California sexual assault bill reaches beyond sex

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Earlier, I discussed a California bill, Senate Bill 967, that could lead to restrictions on certain kinds of consensual sex in the name of fighting sexual assault.

Both the bill, and a University of California policy that incorporates concepts from it, would effectively restrict foreplay as well, since their restrictions reach beyond sexual intercourse, to “sexual activity” in general, suggesting that their "affirmative consent" requirement (such as verbal discussion) may be needed not just before sex but also, in much more cumbersome fashion, before each of many steps along the way where "particular sexual" behavior escalating towards sex occurs.

Thus, they may require affirmative permission before each of multiple steps in the process of foreplay that leads to sex, even between couples who have engaged in the same pattern of foreplay before on countless occasions, (and even for kinds of physical contact that are seldom preceded by discussion, or any express permission or invitation).

For example, the UC policy defines “sexual assault” to require “unambiguous” “affirmative” consent prior not just to penetration (which is not always unreasonable if consent is defined to include non-verbal cues as well as verbal responses), but also “physical sexual activity” in general.

Effectively, this might ban foreplay as it commonly occurs among married and unmarried couples alike. Things like vaginal intercourse generally are in fact preceded by non-verbal affirmative permission, since it generally requires physical movements by both parties to facilitate. But not most “sexual activity” falling short of actual intercourse (i.e., foreplay).

Foreplay is typically not preceded by affirmative permission or consent in advance. Instead, it is often acquiesced in by the recipient as part of a process of gradual escalation in which each partner engages in a new form of intimate contact that that the other acquiesces in. For example (and I regret the necessity of providing these graphic examples, which are necessary for the sake of clarity), the husband starts touching or licking his wife’s breasts to see if she likes it and to turn her on, or the wife grabs the husband’s member while in bed with him engaging in foreplay (to get him firm enough for penetration), that might constitute sexual assault under this policy, even if it is welcome and enjoyed.

Why? because it is not preceded by “an affirmative . . . decision” to consent by the recipient, but rather is initially acquiesced in. The “consent” follows the activity, rather than preceding it, meaning the activity was potentially non-consensual for at least a brief time before the recipient became aware of it and consented to it. These activities are essential to foreplay, and are a step-by-step process that would be ruined by explicit discussion at every step (it would ruin the mood, thus defeating the very purpose of foreplay). My wife would be very annoyed if we verbally discussed these things. Thus, both husband and wife are defined as sexual assault perpetrators by this bill. Requiring consent in advance under these circumstances is sexually repressive and unfair. Foreplay is a long progression of steadily escalating intimacy in which each partner alternately initiates and acquiesces in deeper intimacies, not a sudden act that requires prior discussion.

This reality is seemingly at odds with both the bill and the University of California Policy.

The bill states, “’Affirmative consent’ is a freely and affirmatively communicated willingness to participate in particular sexual activity or behavior, expressed either by words or clear, unambiguous actions. . . The existence of a dating relationship between the persons involved, or the fact of a past sexual relationship, shall not provide the basis for an assumption of consent.”

Similarly, on February 25, the University of California system appears to have essentially adopted most of the requirements of SB 967, in a new policy defining “sexual assault” and “sexual violence,” defining it to include some conduct that is not violent at all. What concerns me most is that the policy defines “sexual assault” to require “unambiguous” “affirmative” consent prior not just to penetration (which is not always unreasonable if consent is defined to include non-verbal cues as well as verbal responses), but also “physical sexual activity” in general.

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