Affirmative Consent: The 21st Century Basis of Sex Regulation

What is the sex bureaucracy? How has it interacted with social norms to shape regulations regarding sex in the United States over time? In what ways has it changed, and to what extent has its new form retained a variety of bureaucratic elements? Should the public be concerned about unequal applications of these regulations?

These are the questions professors Melissa Murray and Karen Tani address in their recent article, “Something Old, Something New: Reflections on the Sex Bureaucracy.” The article was crafted in response to recent scholarship that laid bare the current approach of the federal bureaucracy toward the regulation of sex. Murray and Tani provide supplemental information that enriches the discussion and provides a new perspective for understanding the changing structure of this particular bureaucracy in the United States.

The authors start by providing a brief history of sexual regulation from the late 19^th to mid-20^th century. During this period, laws and regulations regarding sex pivoted on marriage: Licit sex existed within the marital structure; illicit sex lay outside of it. This division existed throughout society, although police and regulators did not implement these laws and regulations uniformly.

For immigrants, sexual independence was especially frowned upon. Spurring from fears of racial purity and infectious diseases, legislators and administrators used the threat of deportation in an attempt to prevent immigrant women from having sex outside of marriage, sometimes even forcing them to remain unmarried—thus theoretically limiting their ability to have sex at all. The 1891 revision of the Immigration Act barred entry by women convicted of prostitution or crimes of moral turpitude. With the passage of the 1910 Mann Act, immigrant women who lived in the same household as a prostitute could also face deportation. Poor women who received welfare benefits faced having their benefits taken away if they engaged in prostitution or gave birth outside of wedlock. The U.S. government even enacted sterilization programs for unmarried women who had children.

Public employees lived under comparable duress. Military servicemen caught engaging in homosexuality were undesirably discharged, carrying with it significant economic and cultural consequences. Unwed women were frequently barred from teaching children at public schools. Enforcement of such restrictions peaked in the mid-1950s with the rise of anti-communist fervor.

The reduction of sexual restrictions based on marriage that began in the late 1950s continued to loosen over the following decades. By the 1980s, laws criminalizing sex outside of marriage were either no longer on the books or rarely enforced, although public employees were still affected by bureaucratic regulations on sex—as seen in Andrade v. City of Phoenix, Hollenbaugh v. Carnegie Free Library, and Andrews v. Drew Municipal Separate School District. The culmination of this deregulation came with Lawrence v. Texas, the Supreme Court case that invalidated sodomy laws in 13 states and legalized same-sex sexual activities. However, as the bureaucratic regulation of sex through the lens of marriage declined, a new bureaucracy based on consent took its place.

Murray and Tani give partial credit to the United States Department of Education (DOE). Through authorities vested by Title IX of the Education Amendments of 1972, the DOE’s Office for Civil Rights set sexual regulations surrounding consent, urging educational institutions to specifically adopt the paradigm of affirmative consent and embed processes to deal with sexual misconduct. A grassroots movement of younger activists pushed this forward, shifting from a more traditional conception of consent under “No Means No” to an affirmative one of “Yes Means Yes.”

The authors draw a parallel between affirmative consent and historical sexual regulation under the contractual relationship both concepts relied upon. Marriage existed as a written document binding two individuals, allowing them to have sex. Affirmative consent requires specific consent for every sexual encounter, creating a transactional approach to sex. Murray and Tani contend that consent has become a non-renewable verbal contract that, functionally, is not very different from a marriage contract. Just like marriage, consent—and specifically affirmative consent—binds two individuals as they engage in private behavior that advances their respective interests. In this view, the authors examine affirmative consent as the new marriage.

The future of how sex bureaucracy regulates is unclear. Numerous legal issues remain opaque with consent as a legal standard, made more worrisome by the wide latitude unelected bureaucrats have in setting regulations. Of concern to many defendants, the ambiguity as to what consent might look like absent verbal acknowledgement has led to a situation where a lack of affirmative consent between individuals may be inherently assumed to be sexual assault. Thus, when it comes to consent, courts have not adequately nor uniformly ruled on where the line has been, or should be, drawn. Moreover, Murray and Tani draw a pendulum-type link between the increasing regulation of sex based on consent with the diminishing regulation of sex based on marriage, particularly to the degree with which the sex bureaucracy may arbitrarily choose to intervene. Just as legislators and administrators previously regulated sexual activities within the context of marriage, they may choose to do so with consent. California has already passed “Yes Means Yes” legislation in 2014.

Murray and Tani acknowledge that moving from marriage to consent as the basis of licit sexual conduct represents progress for women in the fight against sexual violence. However, just as immigrant women were more likely to be subjected to laws around prostitution and children out of wedlock in the 20^th century, they recognize that the new sex bureaucracy may be likely to punish already marginalized groups. They conclude that research on the sex bureaucracy needs to continue and are hopeful that doing so will bring about more equitable applications of sexual regulations for LGBT and minority groups.

Article source: Murray, Melissa, and Karen Tani. “Something Old, Something New: Reflections on the Sex Bureaucracy.” California Law Review Online 7, no. 122. (2016): 122-54.

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