Earlier, I discussed a bill whose backers would like to use it to redefine quiet consensual sex as rape.
The assumption behind the bill, SB 967, seems to be that California’s general definition of sexual assault, which applies off campus, is too narrow. But this assumption is dubious, and in a few rare situations, the existing California definition of sexual assault may already be too broad.
Men and women involved in sexual relationships learn the intimate preferences of their partners. As a result, they often know without discussion when their partner desires sex, and can often tell in advance from context whether their partner will welcome a particular sexual act. For example, the former girlfriend of a college hallmate of mine at the University of Virginia would sometimes awaken him through oral stimulation, evincing her desire for intercourse, which generally ensued between them without discussion. Under existing California law, this pleasurable activity is already treated as sexual assault, since a decision by the California Court of Appeal ruled that people cannot consent to future sex while incapacitated. But every person who heard this anecdote thought my hallmate was a lucky man, not a victim of sexual assault (the pleasure of sex may in some cases be enhanced by the element of surprise). Thus, the current California legal definition of sexual assault already appears to be too broad, not too narrow, in this unusual situation.