The New Yorker Radio Hour - The New Norms of Affirmative Consent

Episode Date: September 3, 2019

Mischele Lewis learned that her fiancé was a con man and a convicted pedophile. By lying about who he was, did he violate her consent, and commit assault? Lewis’s story raises a larger question: What is consent, and how do we give it? It’s currently the standard by which the law regulates sexual behavior, but the continuing prevalence of harassment and assault has led many college campuses to adopt more stringent standards. At the core of many new rules is the principle of affirmative consent: that sexual partners must verbally and explicitly express their acceptance of each and every sexual overture. The problem is that few of us use affirmative consent—even many of its advocates find it cumbersome in practice. Alondra Nelson, a professor of sociology and the president of the Social Science Research Council, explores this shifting of sexual norms with The New Yorker’s Joshua Rothman. They spoke with the legal scholars Jeannie Suk Gersen and Jacob Gersen, and with the facilitator of cuddle parties, who compares her nonsexual events to “going to the gym for consent.” Plus, an interview with a climate striker. Inspired by Greta Thunberg, fourteen-year-old Alexandria Villaseñor spends her Fridays outside the United Nations, demanding action on climate change. But the risk of “eco-grief” is high, she tells the reporter Carolyn Kormann. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

From One World Trade Center in Manhattan, this is the New Yorker Radio Hour, a co-production of the New Yorker and WNYC Studios. Welcome to The New Yorker Radio Hour. I'm David Remnick. All over the country, young people are going back to school. College freshmen are going to orientation, and classes may have already begun. And one of the things they're learning about now is how to conduct themselves, not just in class, but also in their social and intimate lives. sexual assault on campus remains a pervasive problem. One estimate says that more than 10% of graduate and undergraduate students will be assaulted. So universities have responded with training and rules about what students should be doing and how. Alondra Nelson has seen that process up close.

She's president of the Social Science Research Council, and she's also at the Institute for Advanced Study at Princeton. A few years ago, Nelson was an advisor to a research. research study on student sexuality at Columbia University, and she explained that many universities are trying now to establish guidelines on what's called affirmative consent. Often the consent has to be verbal, so someone has to say, yes, I consent to engaging and sexual intercourse. The person has to be able to sort of freely consent, so they can't be incapacitated in any way. So someone has to say, can I do it.

this and then the other person has to say, yes, I would like that. Or although in some cases one can nod or blink or moan. Right. Past affirmative consent can't be taken as being present or future affirmative consent. And so it has to be done in real time. Alondra Nelson spoke at length with Joshua Rothman, who's an editor and staff writer, about this new idea of affirmative consent, how it works, how it's being taught to young people, and what it means for just about anybody who's sexually active.

here's Josh. You know, I've been, I mean, like a lot of people, I've heard a lot about affirmative consent. And, you know, New York State and California made affirmative consent the legal standard. Like, what does that mean for, for example, married people? Does the affirmative consent rule mean that they're effectively having illegal sex if they aren't asking for consent every time they have sexual contact with some kind? Yeah, it's an open question and a good question when we think about partners, people who've been together in relationships for a long time, whether or not they should ask each other on the way out the door to work for the morning commute if it's okay to kiss. I mean, I guess this is just a really complicated zone, and so maybe it would be helpful to just look back at where consent came from.

It starts before the 1960s when the definition of what counted as rape. An explicit violent act. Yes, rape was defined as an explicitly violent act, and, you know, most laws held that it couldn't occur. in a marriage. Yeah, I mean, because we're talking about a moment in which you have the emergence of things like our bodies ourselves, right? Sexual empowerment, but it's also about people's agency and control over their bodies. And so people are saying any engagement with my body is my right to decide. Right. Now in the sort of Me Too era, we're sort of bumping up against the boundaries of clarity. There's new cases in which it's like increasingly unclear whether consent was given

legally or not. So what are you, what are you thinking about in particular? What kind of cases? Well, so like in some of the Me Too cases, for example, people have allowed sexual contact. But because of power dynamics, like the perpetrator, you know, has some sort of power, like they're a boss or a studio executive, the people who gave consent or seemed to have also felt like they didn't actually, they weren't actually capable of giving consent. So we might think about some of the women who were harassed by Lewis C.K. who didn't run out of the room.

But that certainly doesn't mean that they weren't harassed. It certainly doesn't mean that they gave consent to what was happening by staying in the room. Right. It's about the power to consent and whether people have that power. Recently, I came across a case. It just really muddied my thinking about consent.

And I wonder if I could maybe tell you about it. Sure. So there's a woman named Michelle Lewis. She lives in New Jersey. We met at her house around her, dining table. She has a puppy named Chip. And she was telling me about falling in love with a guy named Liam Allen, a British man, who she met online. Very charming, very polite, very gentlemanly. It was quite lovely, to be honest.

Yeah. We're seeing each other maybe two or three times a week. Like, we'd go to the library, we'd go to the movies, we'd go to the mall, we would just people watch. The comments he would make were hysterical. Michelle is a labor and delivery nurse, and Liam worked in health care IT, so they had all this work stuff to talk about. She was recently divorced. She had two kids. And Liam had said he was a career guy who was, you know, finally ready to get serious about

starting a family. So it was a really good fit. Michelle was hopeful. They fell totally in love. And then Liam started acting like weird. A little distant. I could tell at this point, you know, almost six months into it, I could tell something was off.

Yeah. One day he did sit me down and he's like, I got to talk to you. I was like, great. The shoe's going to drop. It's going to be some horrible news that, you know, he's married or he found somebody else, you know. So Liam tells her that although he had previously said he works in healthcare IT, he actually works for the British government. And he can't give her any more details about that unless she goes through a sort of background check.

It's basically like a life bio, like all my very personal information. I mean, it's like almost an application slash essay format. For you to fill out. For me to fill out. Right. Like my date of birth, my social security number, like the streets I grew up on and like who my closest friends were and just crazy things. I was like, I need to think about this. This sounds really fishy.

Totally does. But Michelle's in love with Liam. She trusts him and she sort of negotiates with Liam until it turns out she can answer the questions over the phone. So this guy named Marcus calls and he's got a Scottish accent. He says, Liam has a very demanding job. Sometimes he's going to be available, and that means he's on the map. And sometimes he's going to be unavailable, sort of on a secret mission, and that means he's off the map. And Marcus says, I'm his handler.

So if you don't hear from Liam, you can call me and leave a message for him. So this is starting to sound like a little bit of a kind of plot from, you know, 007. I guess the way Michelle characterized it to me is like it was mysterious and sort of freaky and weird, but also kind of exciting, and the relationship has been great so far. So, you know, it continues. Liam starts to get closer with her kids. He comes over for Thanksgiving.

He meets the whole family. And shortly after that, he asked Michelle to marry him, and she says yes. But he doesn't show up for Christmas when he says he will. And the same happens at New Year's. Michelle tried calling Marcus, and he said Liam was off the map. And Michelle was just getting increasingly frustrated.

One of the things she'd noticed was whenever Liam left the room, he always took his wallet with him. And one day he didn't. I don't know what made me do it. It was like some weird women's intuition, ESP. But I looked in his wallet and the first idea I whipped out had a completely different name on it than the name I had had for over a year. It said. It said William Allen Jordan. Ah, so the truth is emerging. He's William Allen Jordan.

Right. So Michelle Googles William Allen Jordan, and she finds all this stuff about a person who has had a long history of deceiving women. What had come up made my stomach turn article after article after article where he had been convicted of bigamy and fraud and was a convicted child molester on top of that. I was shaking. I had that whole tunnel vision moment where I was sitting there and the whole world was like going away from me black. Long story short, William Allen Jordan is arrested and charged with impersonating a government official and with fraud and with sexual assault. I was filled with like so much like regret, like, oh my God, you know, you have that instant feeling of, you know, just. dirty and disgusting and, you know, I can't believe this happened. And I can't, like, I couldn't even stand myself for a little while. She really feels that she's been sexually assaulted. Absolutely.

But the grand jury declined to press sexual assault charges against William Allen Jordan. It was kind of ambiguous. One of the factors was that, like, mental incapacity. And of course, it alludes to somebody who is either like drunk or drugged and truly cannot make a good decision judgment at that time. In my case, I wanted it to fit because I felt like I was robbed of my ability to make informed consent because all the information I had was completely lies. it's really interesting that she uses that phrase. Which phrase? Inform consent.

It's not a phrase that we typically apply to romantic relationships. It's a phrase that's used in the health care field. It's used in bioethics in the medical domain. Right. So this is exactly what we were talking about before. This is why I wanted to tell you the story. I mean, we started talking about just consent, the type of consent that is better than the force requirement.

And then there's affirmative consent. And then there's now even this very moving story, Michelle's story, that makes you think maybe the standard should be informed consent. Not only do you have to say yes, but you have to say yes while in possession of the truth. And it turns out that there are some states where laws against this kind of assault, which is sometimes called rape by deception or sexual assault by fraud, where that's the law. And so Michelle teamed up with a New Jersey lawmaker to try to get a similar law on the books in New Jersey. We needed it to be specific to be able to catch the people it's intended for, but it couldn't be too broad that too many people either got erroneously accused or too many people, you know, fell through the cracks.

Michelle is putting her finger on. I think one of the issues that we need to consider here, which is that the concept of rape by deception or sexual assault by fraud could pull a lot of people into its net. So would folks be open to charges of sexual assault if they lied about their age or if someone lied to a spouse about an extramarital affair? So I think maybe we should talk to a lawyer and find out why it's not as clear cut as one might think. Sounds like a plan. Yeah.

My name is Jeannie Sok-Gerson, and I'm a professor at Harvard Law School. And I'm Jacob Gerson. I'm also a professor at Harvard Law School. And you guys are married? Yes. We are. Ah, okay, good. Well, I know about Jeannie and Jacob.

They're collaborators as well. They've written a paper together about changing sexual norms on campus. Absolutely. Jeannie has also written a lot about consent and the Me Too movement for the New Yorker. They're the perfect people to talk to, really. So I told them about Michelle Lewis and about her attempt to get a law, a rape by deception law. I should say that hasn't succeeded yet, by the way. So I asked them the question you just brought up.

What are some of the possible consequences of a law like this? You can think of a lot of cases where you don't want people to go to prison for saying I'm a doctor when they're in fact a lawyer. Or I love you. Or I love you. Or I love you. I want to be with you. Right. There's a sympathetic case like Michelle's case, but there are going to be some unsympathetic cases where someone's going to say, I thought I was having sex with a white person. But it turned out that they were half black.

And I didn't know that. They should have told me or else I would never have sex with them. Jeannie raises something really important again. You know, time and time again, the law has been co-opted. for racist ends. And so historically, claims of interracial sexual assault sometimes turned out to not be true. Right. Like sexual assault laws are great and important, and they've also been used as tools for racist domination. There you go. So what did Jeannie and Jacob have to say about how we currently think about consent?

Well, so it's complicated. And Jeannie told me that there can be a real disconnect between how the law defines consent and how people in intuitively understand it. What you might think of as a personal experience of consent might not be the same thing as what the law considers to be consent or what just another person who was there, say, thought of as consent. That word is just so overburdened with so many different kinds of definitions. So, you know, it strikes me that this is partly what's coming up in the Me Too movement. Maybe what needs to happen is that we need to establish affirmative consent.

as a norm, would that be helpful? Right. So affirmative consent would be helpful because, you know, would force everyone to unite around a definition of what consent is. One hopes. Right. But when I hear about affirmative consent rules, the more I think about putting them into practice myself, I mean, the more that they just don't sound, to me, terribly sexy or terribly useful. You know, so Jeannie and Jacob have studied how affirmative consent is playing out on campuses

where it's taught. And they told me that it seems like even student advocates for affirmative consent don't use it all the time. They will sometimes a little bit roll their eyes and say, well, we don't really expect every encounter to go this way. And certainly I don't practice it every single time, but it's just a good benchmark. You know, so people say affirmative consent won't work because it's so awkward. She thinks that people don't practice perfect affirmative consent because they don't always know what they want. And not always knowing what you want is sort of built in to our sexuality. You know, we don't always know what we will or won't like.

There's a lot of sex that's about that zone of not being sure, of being experimental, you know, even doing something and having regret later. All of that is part of human sexuality, which is what has made it such a topic of such interest and fascination for millennia. I am in favor of people getting more in touch with what they want and what they don't want, but what I worry about is somehow promoting the idea that that is what sex is. It's always about what you want and what you don't want. It's not just the law.

We had a couple who are economists over, and we had a fundamental, let's say, disagreement about whether ambivalence was a real thing. And they actually just couldn't process it. What do you mean? You either want it or you don't want it. Get in touch with what you really want. It was really striking that these economists friends, I mean, I don't mean to say all economists are like this, but these economists friends really were grappling. What do you mean? Somebody could want something and not want something at the same time?

And so then one comes up against the limits of the law. I mean, how can the law be asked to account for that kind of ambivalence? So, I mean, that's exactly what I wondered. Yeah, that's a good question. I think it can, but the kind of language and protocol is that you argue one side of a case completely. and the other side argues the other side completely and one side wins. So let's even just take the situation of wanting it and not wanting it at the same time. Law, because it does pick a winner and a loser, it is going to have this kind of on-off effect. But you're not saying that it was all wanting or that it was all not wanting. You're never saying that.

What you're saying is we've considered all of the evidence, including the wanting evidence and the not wanting. And we've made a decision about which one is going to be predominant for this purpose, for this limited purpose. I mean, the way she's talking, it's like the law is it's sort of like a machine that takes an ambivalent situation. And it turns out sort of a binary judgment about that situation. So, you know, that's really valuable. The question is really, when do you want to turn an ambiguous experience into a binary outcome? Like, when do you want to use the legal machinery? Yeah. So there seems to be a still a looming question, right?

So, yes, we don't want to minimize the very serious harm of rape and of sexual assault. But we also don't want to criminalize normal and healthy parts of our sexuality. I mean, it seems like we don't have an answer to that question. You know, the laws change as culture changes. And it could be that affirmative consent will end up becoming part of that change. I think that points being born out, right? And we're seeing that there are more states considering affirmative consent laws, and it's becoming a new norm. And some people are practicing affirmative consent, you know, trying to make it more natural, like more practical.

I would love to cuddle with you. Are you interested in finding something to, some way to connect together? Yes, I am. This is what is known as a cuddle party. I enjoy spooning. Would you like to spoon? Yes. Can I be the big spoon?

Sure. People go to cuddle parties a lot, get really good at kind of knowing what they like. Like for me, this is one I like cuddling. I like a lot of surface area. So spooning is really nice. Or being the middle spoon. It feels very secure. Did you cuddle?

I did not. I asked my wife whether she would be okay with me going to the cuddle party. for this radio story. And she was a little uncomfortable. And, you know, I was too. But I did talk with Madeline Guanazo, who's a facilitator who runs the cuddle party. So the first rule is that this is not a sexual event.

The second rule is that no one has to do anything. The third rule is that you must ask first. The next rule is that if you are a yes, say yes. If you're a no, say no. The next rule is if you're a maybe, say no. know. And, you know, there are lots of other rules, too. There's about an hour of prep before cuddling begins. The whole event is really about negotiating what kind of cuddling can happen. It fortifies the skills. I do think of it as like going to the gym for consent, because consent is

something that takes practice. What am I really okay with? genuinely, not because it's what's going to get me ahead or get me the approval or get me the A or get me the job. But what do I really want. This is fascinating. It sounds like something that comes out of a feminist utopian tradition in which people were experimenting with making new worlds, with making the worlds that they wanted to live in. It left me curious, though, you know, Madeline's phrase, if you're a maybe say no, because taking it out of this bubble of the cuddle party and moving it into real life and the real world, you know, maybe doesn't necessarily mean no. Maybe might mean not to today, not right now. Try me again. Try me in a few minutes. I mean, I don't know. Do you think we'll ever

be able to change our norms such that we remove ambivalence from sexuality? No. I mean, I think the sort of machinery of the law that you were talking about tries to flatten ambivalence, but the ambivalence remains. All of this discussion around consent is it's about, you know, trying to give people power to maintain their integrity. We're trying to make rules that are going to keep us from harm.

And it might just be that we can't make rules that are good enough to do that. If you want to fix sexual assault, the law only gets you so far. Joshua Rothman is an editor and staff writer at The New Yorker, and he spoke with Alondra Nelson, who's the head of the Social Science Research Council.

This is the New Yorker Radio Hour. Stick around. This is the New Yorker Radio Hour. I'm David Remnick. On a recent Friday, the New Yorker's Carolyn Kormon went to meet a 14-year-old girl named Alexandria Via Senor, who was spending the day on a bench near the United Nations headquarters in New York. So how many Fridays have you been out here now? I've been on... I was forgetting the number. It's gone to the point where it's like, it's either 35 or 36. Alexandria is one of the generation of young activists inspired by Greta Toonberg,

the Swedish teenager who addressed world leaders at the 2018 climate change conference known as COP 24. Alexandria saw a video of Tunberg's speech last December, and that was it. Every Friday since, she skipped school. She's on a climate strike, and she intends to keep it up until the adult world can finally get its act together and do something, banning fossil fuels to her mind would be just a place to start. Here's Alexandria Via Senor talking with climate reporter

Carolyn Korman. I'm curious what your life was like before you started striking. Just, you know, what was your average day like? Well, before I started my climate activism and my climate strike, a lot of my life consisted of doing theater shows because I was a theater kid,

as well as just doing normal. kid things. So hanging out with friends, hanging out with my family. And I used to live in California. So a lot of this was done in Northern California and going to the rivers and the Arboretum in Davis. Do you remember the first time you learned about climate change? So what really got me involved in climate activism was that I moved to New York City last August. So I've been here for a full year now. But I was visiting family back in November when the Paradise Fire had broke out. So we were all in Davis. And Davis is only an hour away from Paradise.

So we ended up getting a lot of the smoke. It reached 350 AQI at one point, which is air quality index. And it was also the worst air quality in the world. At that moment. Wow. So, for example, in downtown Davis, they weren't realizing the effects of smoke inhalation, so they'd be dropping in downtown Davis. Ambulances would have to come and pick them up.

But for me, I noticed that my chest started to get really prickly as it does sometimes with asthma. And it felt like needles were punching my chest. So I'd wake up nauseous every morning. I'd have to keep a wet washcloth over my face. And I got a red eye out of California at the last minute just because all of the flights were. actually booked because people were trying to leave California from the fires.

Right. And at that time, were you aware of what was happening in Paradise? I started researching and Googling. I had stumbled across some articles about climate change talking about what it's doing to California and the wildfires. I had come across COP 24, and I'd hoped that world leaders would come to a sufficient agreement to stay in line with the IPCC report that came out last October and reduced their global greenhouse gas missions. And when they didn't, I remember being really upset. And I had seen Greta Tinberg speak. And she had really empowered me to start my strike on the last day of COP 24, which was December 14.

And Greta Toonberg is your good friend, the climate activist, Swedish climate activist. And how much time would you say that you spend talking to other climate activists around the world, your peers, via Twitter, or whatever messaging platform you use. Let's see, there's 24 hours in a day. And I have to spend at least six hours sleeping. Just six hours? Well, I had to, I fell asleep at, like, 1 a.m. last night because I had to do some emails and some phone calls that happened at, like, eight.

And so, yes, about six hours. But it's okay because it changes. Okay. But I usually spend about 15 hours a day talking to other youth climate activists. What apps do you use? All forms of social media. So Twitter, Instagram, but then we also go to WhatsApp. We use Slack.

We use Discord. Discord is actually an international gamers chat, but we use it a lot for international communication. For chatting. There's nothing to do with gaming. Nothing to do with gaming. So, I think it was in March, you were quoted in a piece on Breitbart. Oh, you checked out the article. Oh, that's great.

And what was the response to that piece like? It was interesting. So I personally, I have thick skin. when it comes to any trolls or climate deniers. But a lot of the times for people in my family and my parents, it's scary. And so just seeing the comments on Breitbart, so after Breitbart put up the article, the comments got so many death threats,

that Breitbart had to disable the comments, purge the comments, then they put them right back up. And so after the Breitbart article came out and the death threats got very, scary. Then I usually have a family member out with me at the strike every Friday. I find writing about climate change and being immersed in this stuff all the time, it can be quite draining and sometimes depressing and scary and cause a lot of anxiety.

So I wonder, do you feel similarly or how do you take a break from how depressing it can be? The climate crisis causes a lot of anxiety and eco-grief. That's a new term for me. I'm not sure if I just made it up. I feel like I've heard it before, but I could have just made it up. But how I combat that is taking action. When I go out in protest, when I take direct actions, and when I strike, it's one of the ways that I feel empowered about my future that I have a say in what's going to happen.

And I guess, yeah, since you've been... coming out here conducting these school strikes, has your outlook on the world changed? I think the way that my view on life has changed since I started organizing is I see more of the structures that society has put in place. And that's one of the things that my generation, why we're so impactful with the climate movement,

is because of how we're organizing outside of this structure that adults work in. And we see outside of the structure that adults work in, We see outside of the system. We just think about what we need to do. We don't think about what's politically possibly. We just think about what needs to happen. Alexandra Via Senor, climate striking on a recent Friday afternoon.

She's helping to organize the global climate strike slated for September 20th, and she spoke with the New Yorkers Carolyn Kormon. I'm David Remnick, and that's the New Yorker Radio Hour for today. Thanks for listening. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Yards with additional music by Alexis Quadrato. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.