How Affirmative Consent Laws Deny The Ambiguity That Actually Comes With Sex -- And How "That's Victim Blaming!" Increases Sexual Assault
Carol Tavris -- a researcher I have great respect for -- has a long piece up at Skeptic.com.

Tavris notes that Affirmative Consent laws fail to take into account the "subtleties" in "the gray zone of human interaction":

The vast majority of all reports of rape--about 85%--occur between people who know each other. Some of these encounters are unambiguously coerced, but many are not. And while the goal of getting expressed consent is admirable, it's not entirely realistic--partly because people often don't know what they want.

Sex researchers repeatedly find that people rarely say directly what they mean at the start of a sexual encounter, and they often don't mean what they say. They find it difficult to say what they dislike because they don't want to hurt the other person's feelings. They may think they want intercourse and then change their minds. They may think they don't want intercourse and change their minds.

They are, in short, engaging in what social psychologist Deborah Davis calls a "dance of ambiguity." It occurs because the intersection between consensual and nonconsensual sex is often not marked with flashing lights and traffic signals that say Slow! Stop! Yield! This is the territory of "he said/she said" and the polarized interpretations that cause such heated debate.

The reality from sex research:

As sexologists know from research and clinical experience, most straight couples, even long-term couples, communicate sexual intentions--including a wish not to have sex--indirectly and ambiguously, through hints, body language, eye contact, "testing the waters," and mind reading (which is about as accurate as...mind reading).

This dance of ambiguity actually has benefits for both partners: Through vagueness and indirection, each party's ego is protected in case the other says no. Indirection saves a lot of hurt feelings, but also causes problems: The woman really thinks the man should have known to stop, and he really thinks she gave consent.

Davis and her colleagues Guillermo Villalobos and Richard Leo have suggested that the primary reason for the many "he said/she said" reports that make the news is not that one side is lying. Rather, each partner is providing "honest false testimony" about what happened between them.

That is, both parties believe they are telling the truth, but one or both may be wrong because of the unreliability of memory and perception, and because both are motivated to justify their actions.

Because memory is reconstructive in nature, and susceptible to suggestion, and because we distort or rewrite our memories to conform to our views of ourselves, people can "remember" saying things that they only thought about or intended to say at the time.

As a result, a woman might falsely remember saying things that she thought about (but did not say) to stop the situation, because she sees herself as an assertive person who would stand up for herself.

A man might falsely remember what he did to verify the woman's consent that he did not do, because he sees himself as a decent guy who would never rape a woman. She's not necessarily lying; she's misremembering. He's not necessarily lying; he's self-justifying.

And then there's alcohol:

By far, the most well-traveled pathway from uncomfortable sexual negotiations to honest false testimony is alcohol. For some women, alcohol is the solution to the sex decision: If they are inebriated, they haven't said "yes," and if they haven't explicitly said "yes," no one can call them a slut.

Alcohol, of course, reduces inhibitions and makes "yes," for both parties, more likely. But it also significantly impairs the cognitive interpretation of the other person's behavior: men who are drunk are less likely to interpret non-consent messages accurately and women who are drunk convey less emphatic signs of refusal. And alcohol severely impairs both partners' memory of what actually happened.

If our goal is really to reduce sexual assault of all kinds, therefore, it is not helpful to label all forms of sexual misconduct, including unwanted touches and sloppy kisses, as "rape." We need to draw distinctions between behavior that is criminal, behavior that is stupid, and behavior that results from the dance of ambiguity.

Christopher Chabris and Daniel Simons have an excellent book out -- The Invisible Gorilla: How Our Intuitions Deceive Us -- that explains some of the ways our intuitions mess us up, and how in the dark we are about this. My radio show on the book with Chabris is here. An example from the book description:

We write traffic laws and build criminal cases on the assumption that people will notice when something unusual happens right in front of them.

Here are Chabris and Simons from their book on why "the illusion of knowledge" persists -- how we respect people who seem certain and sneer at people who say they aren't sure:

Scientists, architects, and hedge fund managers are respected, but weather forecasters are parodied. Yet weather forecasters have fewer illusions about their own knowledge than do members of these other professions.

In Chapter 3 we saw that doctors who consulted books and computers were underappreciated by patients, whereas a rape victim who expressed no doubt in her testimony was praised as a model witness.

There we argued that our love of confidence can reward people for acting as though they are more skilled and accurate than they really are.

The illusion of knowledge has similar consequences: We seem to prefer the advice of experts who act like they know more than they really do -- or who honestly believe their knowledge is greater than it is.

Tavris herself has a great book out on cognitive biases -- Mistakes Were Made (but not by me) -- coauthored with Elliot Aronson. Here's my radio show on the book with Tavris.

Tavris's note on alcohol and how that leads to sex acts one may, um, regret the next day, suggests that the single best way to stop unwanted sex or unwanted sex after the fact is, no, not campus kangaroo courts that remove due process from men.

It's discontinuing our counterproductive alcohol prohibitions for people "underage" that lead to binge-drinking on campus that isn't seen in countries with less strict alcohol policies.

And it's telling women that they have to take responsibility for themselves and not overdrink -- and stop seeing doing that as "blaming the victim." It's instead telling women how not to be victims -- telling them that yes, as new adults, the territory comes with taking responsibility for yourself.