Sometimes I stupidly wade into the cesspool of Reddit’s libertarian community. I’m not sure why I do this. Maybe it’s to remind myself why most people view libertarians as raging assholes or maybe it’s because I periodically have to be reminded that the shitty side of humanity exists in every political movement. It really doesn’t matter why I do it. What does matter is that by doing it I sometimes come up with interesting material to write about. Reddit’s libertarian community recently discussed California’s affirmative consent law. With the understanding that libertarians will take a skeptical view of any law I figured this discussion would end up being fairly interesting. Instead it ended up being fairly cringe inducing.
Rape cases are difficult because they often fall into the realm of he said, she said. Did the drunken college woman consent to having sex with the drunken college man? Can a person who is blackout drunk consent? How can somebody tell if another person is too drunk to consent? What about the bad breakup between two partners. Did one partner accuse the other of rape simply to get back at them? Was one partner abusing the other? These are difficult situations to deal with and there really is no single correct answer.
But to read through the comments in the linked thread you would think every woman is just waiting for that opportunity to have drunken sex with a libertarian man so she can accuse him of rape the next day. Therefore the only legal option left under affirmative consent laws is a notarized contract signed by all parties engaging in a sexual act. And we know that’s ridiculous so this law means every man who has sex will be accused of rape and go to jail because the law no longer offers a man any defense against such an accusation.
Let me provide an alternative to a notarized signed contract: discussing sex like an adult. This may blow a lot of minds but you can actually discuss sexual activity with people. Is your significant partner OK with the two of you having sex when you’re drunk? Discuss it. Will your sexual partner consent to being choked? Discuss it. Does that random woman you want to fuck also want to fuck you? Discuss it. Sex shouldn’t be treated as some kind of taboo subject. In all likelihood reasonable adults will act reasonably when discussing matters.
I know what some people are asking, “But Chris, what if we’re both super drunk and want to fuck? We can’t possibly discuss sex like responsible adults if we’re drunk!” If you play a dangerous game be willing to accept the possible consequences (this is another part of being an adult). I’m not a puritan or a prude by any stretch of the imagination. However I am capable of realizing that involving myself in drunken sex with a stranger is risky behavior. It’s not just because I could later be accused of rape, that’s actually pretty far down my list of concerns in such a situation. Since I don’t know the other person’s medical history I have to worry about contracting a sexually transmitted disease. There’s also the possibility of pregnancy (I know, I know, use protection but we’re talking about making stupid decisions in an inebriated state). If you don’t want to face the risks inherit in having drunken sex with a stranger then don’t have drunken sex with a stranger. It really is that goddamn simple.
Libertarianism is supposed to be about voluntary interaction. A lot of questions arise about the ability of an inebriated person to consent so it’s best not to wait until the person is inebriated to discuss a matter. This goes for everything from buying a used car to fucking.
There are other corners cases in rape cases. As I mentioned above, rape often boils down to he said, she said. But for 99% (percentage pulled out of my ass to illustrate a large majority of cases) of situations discussing sex like responsible adults will have you covered. You won’t need to worry about notarized contracts signed in blood. For that other 1% of situations the specific wording of the law isn’t going to help you.