I am old enough to remember when the mainstream still had some semblance of common sense about a decade ago, particularly on the topic of sex and consent to sex, before they lost the plot. That includes mainstream feminists like Amanda Marcotte, who as far as I know still does today. And one can also say the same about Jessica Valenti and Tracy Clark-Flory.
You really might wanna sit down when reading this article, as it is clearly NOT for the faint of heart! It comes with a five-alarm trigger warning about discussion of the topics of rape, sexual assault, alcohol, and the biggest "third rail" of them all that divides the left, the right, the centrists, and even the youth-rights movement: age of consent. And to be blunt, it also contains relatively frank use of profanity and sexual language as well.
Otherwise, enjoy our most controversial article yet, from a blog that is clearly no stranger to controversy! Please note that the opinions expressed here are NOT necessarily shared by all members and associates of Twenty-One Debunked.
PART I: AGE OF CONSENT
First, the biggest "third rail" of them all will be explored. In previous posts from several years ago, Twenty-One Debunked has essentially trolled the ageists/adultists with this issue by suggesting the age of consent (for sexual activity) be raised to 21 (or even 25), albeit with a generous close-in-age exemption, to bluntly and provocatively illustrate their utter pharisaical hypocrisy of them treating young adults over 18 as second-class citizens but still defending the right of older adults to fuck or get fucked by them (and even literal minors under 18 in many states as well). But we have still not actually taken an official position on what the age of consent should be. Our original "modest proposal" was meant to be provocative, and it clearly produced much more heat than light in regards to serious debate. Natch.
I myself am a moderate, lifelong youth-rights activist with absolutely no personal dog in this particular fight at all whatsoever. And I cannot speak for other youth-rights activists either. Furthermore, as a middle-aged man now (wow, how time has really flown since I got started the 2000s!), I have long thought that it is probably best for me to sit this debate out overall.
But now that this general topic has entered the spotlight in recent years, it is probably best to seriously discuss it now, without any trolling. After all, per the Taboo Treadmill, old taboos often get replaced by new ones, and the biggest one right now in the mid to late 2020s is age-gap relationships, including among adults.
(NOTE: Unless otherwise noted, when we say "age of consent" in this article, we are by default referring to the unrestricted age of consent for sexual activity across the board.)
First, all ethical questions aside, I will note that raising the legal age of consent any higher than 18 would likely do far more harm than good overall, and would further infantilize young adults and thus seriously monkey-wrench any efforts to fully recognize 18-24 year olds as the adults that they are in terms of civil rights. Once you are an adult, you are an adult, period. Thus, Twenty-One Debunked will officially NOT support any attempt to raise it higher than 18. At the same time, though, we do NOT encourage older adults to pursue "barely legal" young adults either, so don't even think about putting such words in our mouths!
The "wisdom of the global crowd", for all its faults, has essentially spoken on this. Less than a handful of countries in the entire world set their ages of consent higher than 18, even fewer than do the drinking age. In fact, most countries tend to set it lower.
OK, but what about setting it lower than 18, like majority of US states already do to some extent at 16 or 17? Here is where that "third rail" really begins to shock hard, and for good reason as well. Thanks to the system of adulto-patriarchy, the power imbalance issue is very strong and cannot simply be denied or wished away. And of course, for much younger kids, the issue of mental and developmental capacity also becomes very salient as well, no doubt. But even for 16-17 year olds, the power imbalance is still all too real when dealing with much older partners. It also doesn't help that we still very much live in a sexually schizophrenic society to this day as well, that has also gone backwards in terms of infantilizing young people.
Thus, for the time being, Twenty-One Debunked would support Amanda Marcotte's position to set a uniform, standardized federal age of consent at 18, with one very simple exemption: a three-year close-in-age exemption. (And also apply this very same exemption to "sexting" as well.) This was, of course, written nearly a decade ago in 2017, before this whole age-gap discourse completely jumped the proverbial shark and went off the rails. And people still had at least some semblance of nuance and common sense as well! While not perfect, and literally any age limit is arbitrary, this idea seems to be the least-worst possible way to do it at this time, all things considered. And crucially, it will NOT punish the very same young people whom it is supposed to protect either. This is unlike many states in the current crazy patchwork quilt of state laws that do NOT have a close-in-age exemption. If there was anything about the bizarre status quo that is most relevant to youth rights, this exemption (or lack thereof) would have to be it, and nearly all of the collateral problems with age of consent laws would be solved by doing so.
Now, Marcotte is silent on exactly how far down in age this three-year close-in-age exemption should reach. But we think that it should best cover the entire range of the teen years, perhaps narrowed a bit more near the bottom of that range, and reach to or below the minimum "age of criminal responsibility" to be prosecuted for breaching it. Thus, there should be NO situations where the victim and perpetrator can be the same person, and NO situations where both people are guilty of "mutual crimes" against each other (a truly bizarre state of affairs if there ever was one!). Additionally, when both people are currently college students (as some students are still under 18, often just weeks away from their birthday), the exemption should probably be broadened to four years to avoid any further unintended consequences IMHO.
(We will note that other, ancillary twists in the laws of many states and countries, such as "sexual exploitation", "performance", and "corruption of minors" that conflict with or complicate age of consent should also best be jettisoned or clarified, as those are too vague and thus create a minefield of both loopholes for perps AND also wide dragnets to ensnare innocent people at the same.)
Marcotte also said "In addition, all 50 states should have an all-out ban on marriage under 18, without exceptions. Hell, make it 21. No one should get married who isn’t old enough to drink at their own wedding". Twenty-One Debunked agrees with this as well, except we note that there is more than one way to skin that last particular you-know-what, something we have always advocated: lower the damn drinking age to 18! Problem solved.
In the fullness of time, this highly complex and nuanced issue can perhaps be revisited once all youth are fully liberated from adulto-patriarchy, AND we also evolve into a sexually healthier society. But that is not the society we live in now, unfortunately. And in any case, the Overton window will not allow it.
Another good article about age of consent issues can be found here, written by the ever-insightful Thomas Macaulay Miller of Yes Means Yes. As he notes, it really should NOT be seen as a particularly radical position that a 40 year old should not be having sex with a 13 year old, period, no matter HOW much the younger person appears to "invite" such conduct. Sometimes we really do need a hard, bright line, even if it seems a bit arbitrary. At the same time, not having any close-in-age exemption ends up hurting the very same young people that such laws are supposed to protect. And as history has shown, if we make the perfect the enemy of the good, we ultimately end up with neither.
(As for those on the fringes who don't believe in any sort of boundaries whatsoever, because reasons, well, they can go FOUCAULT themselves! Ditto for the extremist fundies, MAGA, and other reactionaries as well, no apologies to them either.)
And finally, we believe that no changes should be made to the current federal and state laws that set a hard minimum age for commercial sex work at 18 with zero tolerance and NO exemptions, except to tighten the penalties and enforcement. With absolutely NO apologies to the Epstein class. It is considered human trafficking by definition, and for good reason! Thus, anyone who speciously claims that a close-in-age exemption for age of consent to sex in general would lead to an increase in underage sex trafficking is clearly being utterly disingenuous.
Otherwise, we believe live and let live, love and let love.
PART II: AFFIRMATIVE CONSENT LAWS
It has been over a decade since the idea of "affirmative consent" or "(Only) Yes Means Yes" laws have first entered into the general mainstream circa 2014. Several countries have indeed passed such laws, and while no states in the USA have passed such criminal laws statewide yet (though Wisconsin comes the closest), a few (starting with California and then New York) have passed them for college campuses. Amanda Marcotte has also been a vocal advocate of such laws. And while naysayers about, we at Twenty-One Debunked agrees with Marcotte in that, while such laws are imperfect, they are essentially the least-worst possible way to legally deal with the ubiquitous pandemic of rape and sexual assault plaguing our nation and world at large.
Affirmative consent thus closes a major loophole inherent in both the traditional consent standard and force standards: the absence of "no" does NOT equal "yes". Silence is NOT consent, neither is inaction. That is very important due to the fact that "fight or flight" are not the only possible responses of victims, but they can also very commonly "freeze, fawn, or flop" as well. "Freeze" and "flop" are both easily covered by this standard, and while "fawning" (aka people-pleasing) is very difficult for any standard to cover completely, much less prove, it can at least cover this one partially as well. And the onus of making sure one has consent for a given act would fall on the initiator, rather than on the other person to give or not give consent.
Or as Ezra Klein calls it, the "You Better Be Pretty Damn Sure" law.
Amnesty International also supports such a standard as well.
To illustrate the difference in types of legal standards regarding sexual assault:
Force standard (archaic): "No Means Yes"
Consent standard (current): "No Means No"
Affirmative consent standard (emerging): "Yes Means Yes"
Utopian standard: "Yes Means No"
The third item on the list, the affirmative consent standard, is the one that we support. It has been in place in Canada since 1983, for example, and an increasing number of countries are catching on in recent years. The archaic force standard is problematic for obvious reasons, while "No Means No" is necessary and important but NOT sufficient. The essential difference between the "No Means No" and "(Only) Yes Means Yes" is that in the former, the default answer is "yes", and in the latter, the default answer is "no". That's it. And the "utopian" standard is, to put it mildly, a legalistic nightmare at best and a dystopian kettle of fish at worst, not to mention infantilizing and agency-denying to women, while also putting men in a "double bind" as well (where men would effectively have the duty to refuse a grown woman's advances, but not the right to refuse). We would never support that.
(And bonus points for anyone who recognizes the Horseshoe Theory inherent in the utopian-dystopian standard.)
We believe that affirmative consent laws, properly written, should be the standard in all 50 states, both in criminal law as well as otherwise. It is the least-worst legal standard that could ever possibly exist, and protects both women AND men alike. And in contrast we do NOT in any way, shape, or form support Catharine MacKinnon's questionably utopian idea of jettisoning the concept of consent altogether (!), which will ultimately lead to dystopia. In fact, we will not even dignify such an utterly illiberal and infantilizing idea like that with any further discussion.
Granted, we should all be aware that a coerced "yes" (or "maybe", or "meh", or whatever) is really a "no" in disguise. No argument there. Take the first NO for an answer! But when one defines "coercion" as broadly as MacKinnon does, and codifies it into law, then slopes become MUCH slipperier than they appear.
(There is also apparently such a thing as a "desire" standard as well, but desire is itself too slippery and fickle to codify into law for practical purposes, and ultimately leads to the same utopian-dystopian place as MacKinnon, in case you were wondering.)
In contrast, the affirmative consent standard of "Yes Means Yes" is far more realistic, and thus protopian. It is perfect? Of course not. No standard can be. But as we all know, if we make the perfect the enemy of the good, we ultimately end up with neither.
(And no, contrary to what some may believe, consent cannot be withdrawn retroactively, in case you were wondering. That is a fringe theory that fortunately has never made it into law anywhere. It can only be withdrawn going forward.)
But all that said, ultimately, rape and sexual assault are always and everywhere a cultural problem. We need to change the culture to reflect enthusiastic consent as the standard: "if it's not a HELL YEAH!, it's a HELL NO!". And furthermore, anthropological evidence has shown that it is entirely possible to have relatively "rape-free" societies as well. In such societies, which are typically matrilineal and where women are highly valued members of community and society, rape is NOT considered "macho" or virile behavior at all, but rather quite the opposite, and those very few men who would dare do so roundly face much ridicule and shame for it. It is basically seen as the ultimate loser and failure behavior, and it is not at all tolerated. (Nor would a "real man" feel the need to prove himself a man by "scoring" just to get proverbial notches on his belt, as true virility is self-evident.) Rapists thus have no "social license to operate" there at all. In other words, nurture seems to be far more important than nature, as male violence against women is a cultural problem at base.
When rape and sexual assault (and male violence against women and children in general) are seen as not only dishonorable and degenerate, but also the most unmanly thing a man could possibly do as well, that really seems to be the "Achilles' Heel" to eradicating this pandemic of sexual violence for good.
Bottom line, much like Sir Winston Churchill famously said about democracy: affirmative consent as legal standard, coupled with enthusiastic consent as an ethical standard, is the worst possible standard that there is, except for all the others, of course.
PART III: ALCOHOL AND CONSENT
And now we get into yet another contentious topic that has unfortunately become polarized online as well: the intersection between alcohol and consent in regard to sexual activity. Amanda Marcotte and Jessica Valenti have both written articles about a decade or so ago on this topic, again back when people still had some semblance of common sense.
Put bluntly, the specious and agency-denying idea that any amount of alcohol somehow automatically invalidates consent and is thus rape no matter what (or even the milder but still specious idea that too drunk into drive is always too drunk to consent) is absolutely bonkers, and is a gross overcorrection for the very real problems of the status quo ante.
Which is really a shame, because this line of reasoning makes a mockery of a very real and serious problem: namely, the fact that rapists all too often use alcohol as a weapon, deliberately or opportunistically, to incapacitate their victims. (Alcohol is, when consumed in high enough doses, the number-one most common "date rape drug", but of course, "the dose makes the poison".)
And not only is it also agency-denying and infantilizing in regards to voluntarily-induced intoxication, not to mention flying in the face of the presumption of innocence until proven guilty, but it also gives ammunition to actual perpetrators of rape (including of the full-blown, forcible variety) to DARVO their victims (deny, attack, and reverse victim and offender) if they themselves had been drinking as well. If we assume that the standard were gender-neutral, that is, which is itself a rather bold assumption. And the only way to rectify that latter problem of "what if both had been drinking?" is to turn it into yet another gender double standard, and that is clearly very problematic as well. Thus, no amount of mental gymnastics can ever truly fix this utterly specious legal theory. No amount of lipstick can fix this pig.
(And that is before we even get into the problem of a belligerent drunk woman who won't take NO for an answer from a man.)
It's one thing to err on the side of caution, and not want to give rapists one inch of perceived wiggle room to exploit, and another thing to throw out the proverbial baby with the bathwater entirely. Fortunately, and contrary to what many may believe, there is no law on the books anywhere in the world to our knowledge that stipulates that the presence of any amount of alcohol automatically invalidates consent. Nor do most laws even say anything about "intoxication" (a vague term that can mean anything from tipsy to comatose), but rather incapacitation, a more severe state of impairment in which one does not understand the "who, what, when, where, or how" of what is going on, and thus valid consent really is not possible as such.
To quote California's reasonably well-written "Yes Means Yes" law for college campuses, for example:
(a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:
(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(A) The complainant was asleep or unconscious.
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
(C) The complainant was unable to communicate due to a mental or physical condition.
(Emphasis added to the most relevant words here. And note that this also applies to any other psychoactive substances as well to the extent that they result in incapacitation.)
As Marcotte noted back then, such affirmative consent standards are indeed the best way to deal with the problem of alcohol-related rape and sexual assault. And doing so protects everyone.
And finally, we should note that driving ability is utterly irrelevant to consent, as the BAC limit for "too drunk to drive" (in most of the world) is really quite low at a mere 0.05% or less, as little as one or two drinks. Even the 0.08% standard in all US states (except Utah) is still nowhere close to incapacitation either, despite clearly posing an unacceptable risk when behind the wheel. So how about we NOT make a mockery of either?
FINAL THOUGHT AND TAKEAWAY:
All three topics in this article have one thing on comment: when you try to remove all complexity from dating, sexuality, and even life itself, you inevitably only create more complexity as a result.
Liberty is NOT a zero-sum game. Liberty is like love, the more you give, the more you get. While tyranny is NEGATIVE-sum.
The sexual revolution, much like the industrial revolution, was a "mixed bag", to be sure. And both had, and still have, a very real shadow side. But that said, the net effect in the long run was still beneficial on balance for both. Yes, even for the "proletariat" as well (both women and the working class, respectively). Any attempt to roll back either one would thus be the height of folly.
While much progress has been made over the decades in tacking the very real problem of sexual violence, there is unfortunately still a long way to go. And in recent years, especially since about 2020, society seems to have more or less lost the plot in that regard. Thus, we shall reiterate some important points from the 2010s, when there was still some semblance of common sense:
Consensual sex is not always good sex, granted. But non-consensual sex (aka RAPE) can never be good. Like, ever. And punishing or vilifying consensual sex has no place in a free society, and ultimately does more harm than good on balance. Regret is NOT rape, and conflating the two makes no sense.
While consent is indeed the FLOOR and NOT the ceiling of sexual ethics, and there are indeed other dimensions as well (mutuality, respect, honesty, empathy, dignity, and so on), the fact remains that consent (without shoehorning anything else into it) is absolutely the sine qua non that makes all the others even possible at all. It is truly a pitifully low bar to clear, folks, so clear it!
By the way, all of this is true regardless of gender.
Consent itself is as simple as FRIES:
In other words, if it's not a "HELL YEAH!", it's a "HELL NO!". When in doubt, stop and check in. If there is still any doubt, back off and take a raincheck. It's really not rocket science, folks!
And it is also as simple as TEA as well (remember this video?):
And finally, let's put the onus where it really belongs, on the perpetrators, not the victims! The following is quite instructive:
(Mic drop)
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