The Problem of Overzealous Consent Laws

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Talking about consent laws is always difficult. It is a political and moral minefield that can easily trip one up. Sexual assault and non-consensual sexual contact remain serious problems, even in the most developed and civilized nations. Yet in their zeal to end this scourge, progressive activists and legislators can overreach, leading to dangerous and unintended consequences. One such instance is the move in progressive circles to alter the rules governing sexual consent and intoxication, claiming that any degree of intoxication renders the ability to consent void.

This seems like a rather dubious definition on its face. After all, if both parties to a sexual interaction are intoxicated it would stand to reason that neither can consent. Yet even if only one has had something to drink, that should not mean consent is impossible either. Surely progressives believe driving under the influence should remain a criminal offense, yet their logic on sexual consent would suggest otherwise.

Violations of bodily autonomy are egregious offenses and should never be tolerated. But, when the law is brought to bear to confront issues of injustice, it must be wielded with care lest unintended consequences lead to perverse results.

The Law’s Reach Exceeds its Grasp

Sweeping laws about sexual consent, such as those mooted to make consent illegitimate at any level of intoxication, are dangerous. When such a rule is suggested, it leads not only to public backlash, but to outright mockery. Sometimes that mockery, if vociferous enough, can bleed out from the one instance to the general. Ridicule can breed contempt, which may risk undermining consent laws that actually protect people.

Think of it like a reverse “broken window” theory: trivializing issues in the public consciousness can undermine laws and meaningful improvements in future. This can already be seen from the fact that the scorched-earth virtue-signaling strategies, favored by progressive activists, already show diminishing returns. Take the recent Women’s March for example; by changing the rhetoric from genuine concerns about women’s rights to a more strident assault on nebulous notions of “patriarchy”, right wing (and libertarian) outlets were quick to be dismissive. Catastrophizing every issue makes outsiders more skeptical.

The issue of sexual violence and invasion persists in our society and must be confronted, and is far from resolution. But the law’s reach exceeding its grasp moves the needle in the wrong direction.

Law and Reality

Hard rules that try to make everything fit neatly into black and white boxes are all too frequently unsuited to the amorphous activity of living. Life is full of shades of gray, and perhaps nowhere more so than in the messy business of sex. Especially when in the presence of that ubiquitous social lubricant, alcohol.

There are obvious red lines (and perhaps some that are not so obvious) that should undoubtedly be codified and enforced. Bodily autonomy is a fundamental principle of human liberty. But legislating that anyone who has imbibed cannot consent is ludicrous on its face.

Making laws that are prima facie ridiculous is a dangerous course of action because it undermines the very spirit of law and justice. Laws must comport with reality as it is lived by individuals. When the law and real life do not gel, the tension leads to the diminishment of the law. Reality cannot change after all.

Dangerous Roads

A problem for lawmakers is that none of them want to appear soft on crime, especially sex crime. So, if a law such as this were to be actually enacted, its repeal might prove challenging. Think of the difficulties legislators in the United States face when they suggest something as reasonable as reducing the drinking age to 18 (like most of the rest of the world).

A bad law designed for good reasons may prove impossible to dislodge thanks to the tragic exigencies of politics.

Hopefully lawmakers will think carefully before doing anything drastic to consent laws; they need to consider the real and debilitating consequences that opening the lid any further of this Pandora’s Box might unleash.

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John Engle

John Engle is a merchant banker and author living in the Chicago area. His company, Almington Capital, invests in both early-stage venture capital and in public equities. His writing has been featured in a number of academic journals, as well as the blogs of the Heartland Institute, Grassroot Institute, and Tenth Amendment Center. A graduate of Trinity College Dublin, Ireland and the University of Oxford, John’s first book, Trinity Student Pranks: A History of Mischief and Mayhem, was published in September 2013.