California recently passed a law requiring that sexual encounters between students in universities and colleges can proceed only on the basis of “affirmative, conscious and voluntary agreement.” Failure to resist or to ask the partner to stop the encounter can no longer be taken as consent. Institutions that wish to receive state funds or financial aid must adhere to this standard when investigating charges of “sexual assault,” a phrase redefined to include behaviors once considered boorish or insensitive, but not legally actionable. The California law follows on the 2011 Department of Education’s Office of Civil Rights’s “dear colleague” letter that instructed schools investigating sexual assault complaints to use the “more likely than not” or “preponderance of the evidence” standard of evidence rather than the “clear and convincing” one.
The dangers to individual privacy and accountability that follow such regulatory intrusions into sexual intimacy between legal adults have been well documented, not the least being the violation of the rights of the accused, who now enter a hearing with a presumption of guilt rather than of innocence. Also problematic is the double standard inherent in such rules, particularly when both accuser and accused are drunk or otherwise incapacitated.
But the main problem with the California law is the corruption of feminism that it represents. When it comes to sex, the old feminist claim to equal treatment based on a woman’s equal capacity to control her sexual choices has been transformed into an old-fashioned Victorian notion of women as weak creatures who need to be protected from sexually feral males, and who lack agency and thus should not be held accountable for their choices.
The feminists’ championing of sexual autonomy for women reached a head in the 1960s. Before the modern age, sex was seen as a necessary but dangerous force that, if left uncontrolled, not just impaired the mind, but also destroyed whole civilizations. It was the illicit sexual passion of Paris and Helen that “burnt the topless towers” of Troy, as Christopher Marlow wrote. As such, sex had to be contained and channeled by social practices and cultural institutions. Virtues, taboos, and especially marriage all attempted to direct sexual energy to its most socially important goal, procreation and the family. Christianity inherited these assumptions and put them in the context of the theology of man’s fallen nature and the need for the soul to be redeemed from the passions of the transient body.