Thread by @asymmetricinfo

All right, y'all, it's time to tweetstorm the latest column, on affirmative consent.

[Cue wild cheers]

washingtonpost.com/opinions/why-r…

In the column, I draw the distinction between negative feedback systems, and positive feedback systems, which will be important as we go along.

A negative feedback system is like your thermostat. If it gets too hot or too cold, your thermostat tells the furnace "Stop doing what you're doing now, and do the other thing"--either turn on, or turn off.

A positive feedback loop works on rewards, like a sales commission. Basically "That thing you just did is great! Well done".

Positive feedback is more pleasant. The problem, as any biologist (or sales force manager) will tell you: all-positive-feedback systems are unstable.

They have no stopping point, no way to say *enough*, so they tend to spiral out of control. Which is why good systems incorporate negative feedback.

Unfortunately, many women are socialized not to provide negative feedback, especially to men. Which is why anti-rape activists would like us to switch from a sexual consent system based on negative feedback ("no means no") to one based on positive feedback.

This is no more stable than a thermostat which never says "Hey, too much heat, cut it out!"

Now, to address some of the common criticisms that came up: the biggest one was simply that I was exaggerating what affirmative consent is. "All we're saying is you should be sure your partner is really into it, not just going along."

And indeed, that's a very good principle! If your partner is lying there like a pile of uneaten pudding, then you are Doing It Wrong. Stop and figure out what the problem is.

But we're not arguing about whether people should be attuned to their partner's level of interest in the activity at hand. We're arguing about whether the law should call it rape if you didn't get affirmative consent at every step of the game.

Laws, as I pointed out, do not work by issuing general edicts to be sensible and kind. They work by setting out very explicit guidelines, and then punishing people who violate those guidelines.

Most neurotypical and minimally well-socialized people should have a decent intuitive sense of whether their partner is enjoying themselves. But the law cannot say "Employ your decent intuitive sense."

So while you, sensible supporter of affirmative consent laws, may say "We're not actually proposing that people stop every five minutes to ask "Is this still okay?", once it is codified as a rule, your sensible proposal will have the practical effect of forcing just that.

And in fact, if you read up on affirmative consent, you will find that this is, in fact, how these rules have been used in practice.

High schoolers being told they do indeed need to stop every ten minutes to ask whether what they're doing is okay, advocates arguing for obtaining explicit consent every time it "escalates", which is itself hopelessly vague.

And campus tribunals shifting the burden of proof to defendants who cannot *possibly* meet them, because there is no way to ever establish that during every second of an encounter, you had affirmative consent.

Which is the problem with positive feedback: there is no safe harbor, no way to to ever know that you still have consent, even if you asked five seconds ago. What about now?

That's what rules look like, and why the justice system so often produces results we think are unjust. Not because everyone is bad and wants to do evil, but because hard-and-fast rules will never match our much more nuanced intuitions.

Now, as to the other critique--that I don't care about the very real problem of unreported and unprosecuted rapes--of course I care.

Affirmative consent doesn't fix this problem. At all.

What are the two biggest problems with prosecuting rape? (I mean problems that are special to rape, and not those that are common to all crime, such as identifying and apprehending the perpetrator).

First, that sex is a consensual activity most people voluntarily engage in, unlike, for example, having someone smash your car window or beat you bloody. Which means that you have to establish that the activity was involuntary.

This is pretty easy to do in the case of stranger rapes where someone is physically mauled in other ways, more complicated when the two parties met socially.

Second difficulty: in acquaintance rape, there are generally only two witnesses, and often, at least one of the witnesses, and sometimes both, was too incapacitated by drugs or alcohol to make a good witness.

The only way switching to an affirmative consent standard helps either of these problems is if it effectively places an un-meetable burden of proof on the defendant, so prosecutors can basically lock up anyone they personally believe was a bad guy.

I sympathize with the laudable desire for justice that motivates this, but no one--NO ONE--can be trusted with that kind of power.

Short of that, affirmative consent solves no problem with our current rape laws. It doesn't make it easier to prosecute those who have sex with the inebriated, because inebriated people frequently throw themselves enthusiastically at people they wouldn't look twice at sober.

It doesn't solve the "he said/she said" problem, because if he's going to lie and say she never told him "no", he can just as easily lie and say she kept telling him yes.

The only "problem" it solves is the existence of due process and a high burden of proof for the government to impose punishment.

It does, of course, potentially solve another problem: the problem of women who feel uncomfortable declining sexual advances. The idea is that men, in pervasive terror of a sex crimes investigation, will do the job for them by disengaging.

Of course, there's no way to know that they'll only disengage from the disinterested, rather than the merely shy.

Also, as a matter of policy, "The authorities should make one gender terrified every time they enter the bedroom" seems ... disturbing.

It seems far better to teach women to say "No" loud and proud. Especially as--unlike unassuageable fear--this is a useful character trait outside the bedroom, in many areas where we would like to see women advance!

Putting men in charge of guessing whether we want to have sex requires a rather infantile view of women, who are so fundamentally unable to take care of ourselves that some gent has to step in and decide what's good for us.

Thanks, but ... no thanks.

And that brings us to the end of the tweetstorm. I remind you that this is not a recap of the column, which contains *entirely new content* not covered here, so please read it. washingtonpost.com/opinions/why-r…

And with that, have a good afternoon.