The question is, what evidence of "consent" is necessary to satisfy California's new law? The co-author of the bill in the Assembly, Assemblywoman Bonnie Lowenthal, D-Long Beach, was asked how an innocent person is supposed to prove consent: “Your guess is as good as mine," she said. I don't know about other lawyers in the audience, but if I'm challenging the constitutionality of this law, I am going to cite that statement.
The law is not a guessing game. A statute proscribing conduct is supposed to put the public on clear notice as to the conduct that is forbidden. William Lawrence Clark et al, A Treatise on the Law of Crimes at 59 (1996). This is a component of due process. “The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Jordan v. DeGeorge, 341 U.S. 223 (1951). A law that does not meet that standard is unconstitutionally vague. Laws governing sex can't be free-floating standards of purported wrongdoing and should never punish criminality “in the air.”
Cue feminist writer Tara Culp-Ressler, who has written perhaps the most asinine piece on the subject of consent I've ever seen. She chides critics of California's "affirmative consent" law who are concerned about what constitutes legal consent under the law. She essentially tells them that it doesn't matter: so long as the woman is happy, she won't accuse you of rape. Here is what she wrote:
The people who are worried about affirmative consent standards are typically preoccupied about the people who may be penalized for failing to ask questions every step of the way. What if a college student starts passionately kissing his girlfriend without getting her permission first? What if a couple enjoys explicitly consensual foreplay and then moves on to intercourse without a verbal agreement beforehand?
But those hypothetical situations aren’t necessarily breaches of an affirmative consent standard. If both partners were enthusiastic about the sexual encounter, there will be no reason for anyone to report a rape later. So if college students are worried about protecting themselves from being penalized, it’s not hard — all they have to do is stick to engaging in physical contact with people who are clearly receptive to it at the time.Wrong, Culp-Ressler.
"Consent" is an agreement, free of duress, that is evidenced by a party's outward manifestations. It's not enough to say "you're safe if the woman is subjectively happy." A trier of fact must be able to examine evidence of alleged assent at the time of the act to determine if a reasonable person in the position of the person seeking consent would have understood that the other party consented. If that sentence is too complicated for you, read it again, and again, and again until you understand it, because that's the law, and it's the only test that works.
Whether the woman is subjectively happy or subjectively unhappy is not pertinent if her subjective state did not coincide with her outward expressions. The only question that matters is whether her outward manifestations of assent indicated to the man that she assented to the sex act. Period. And historically, consent can be manifested in an infinite number of ways.
Since no one can seem to say what evidence of "consent" will suffice under this strange new law, let's hope it is challenged in court very soon and ruled unconstitutionally vague.