Some brief commentary on the recent passage of “affirmative consent” legislation in California that will no doubt be replicated across the country. I have two primary objections to it:
(1) If we assume the premise of a crisis of rape culture on university campuses, then the only just conclusion is the immediate termination of any state subsidy of this odious institutional setting. There are no if, and or buts on the matter, otherwise its mere toleration of culturally subsidized mass rape. There is no argument for tinkering at the margins for such a thing.
(2) Those that insist that a standard of “affirmative consent” be employed as a mitigating offset are typically the same ones that in any other context scoff at the human agency of transactional consent. So, in California, for example, you will have the left hand implement a legal standard of affirmative consent to address a crisis of mass rape while the right hand vigorously steps up a war on transactionally consensual sex, operating on the premise that transactional consent indicates a condition of human servitude. You are left wondering what exactly does “affirmative consent” entail? Who knows. According to Think Progress, the implied subtext is a legal standard of sufficient mutual titillation. But that nebulous standard implies not only the criminalization of bad sex, but pretty much the banning of marital sex(familiarity breeds routine, not excitement, and romantic love is a very temporary thing indeed).
Interestingly, this issue seems to split left-libertarians. On this one I break the apparent orthodoxy, and I break it hard. Mind you, I would pooh-pooh any suggestion this a consequence of some cultural defect on my part. And I have no interest in defending the sexual practice mores of university life. Frankly, my college years were pretty tame relative to the rest of my youth(gen x’er, so I’m old now). The better part of my experiences came on the streets, the strips and the clubs that proceeded all that. In those thereabouts, there was no “rape culture.”
What this doublethink on “transactional consent” does entail is a rather somber confirmation of the de Jasay model of the State. Even though the classic libertarian method revolves around the plunder of economic rent as the organizing principle of the State, the rational pattern suggests a firm that maximizes discretionary power, not economic rents. It is this descriptive fact that suggests not to rely on your fingers and toes to countdown the expiration date of this thing, the State.