WELL, IT’S ALL JUST ABOUT HILLARY BATTLESPACE PREP ANYWAY: ‘Affirmative Consent’ Will Make Rape Laws Worse.

The “tough on crime” posture is going out of style, even on the right, except when the crime in question is rape. Advocates complain that it is too hard to lock up predators. And so, according to Judith Shulevitz, the American Law Institute, an influential, invitation-only body that publishes model codes and other suggestions for legal reforms, has been considering how we could make the law harsher.

Here is a hypothetical that some concerned members of the group have raised:

Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).

Okay, we can all agree that this is nutty. But as Shulevitz goes on to point out, this is what happens when you combine two principles designed to make it easier to prosecute sexual assault: affirmative consent and “enlarged definition of criminal sexual contact that would include the touching of any body part, clothed or unclothed, with sexual gratification in mind.” The result is that “if Person B neither invites nor rebukes a sexual advance, then anything that happens afterward is illegal.”

Defenders of the thinking behind this proposal might say no prosecutor is going to bring such a silly case, but that’s the opposite of comforting. Who would pass a law intended to be unenforced in almost every case? It’s eerily totalitarian: a sort of blanket mandate convenient for targeting undesirables and threatening suspects.

And that’s the other thing. It’s about empowering the administrative class at the expense of everyone else. Tar and feathers is an appropriate remedy for this kind of “empowerment.”