Eric Schneiderman’s Absurd Excuses Make an Excellent Argument for Affirmative Consent

NEW YORK, NY - APRIL 3: New York Attorney General Eric Schneiderman speaks at a press conference to announce a multi-state lawsuit to block the Trump administration from adding a question about citizenship to the 2020 Census form, at the headquarters of District Council 37, New York City's largest public employee union, April 3, 2018 in New York City. Critics of President Donald Trump's administration's decision to reinstate the citizenship question contend that that it will frighten people in immigrant communities from responding to the census. The Trump administration has stated a citizenship question on the census will help enforce voting rights. (Photo by Drew Angerer/Getty Images)
Eric Schneiderman.
Drew Angerer/Getty Images

On Monday evening, the New Yorker published the accounts of four women who say New York Attorney General Eric Schneiderman subjected them to physical abuse. Two of Schneiderman’s former girlfriends, Michelle Manning Barish and Tanya Selvaratnam, claim he slapped them across the face repeatedly, often during sex, without their consent, causing enough harm to warrant trips to medical professionals. Both say he violently choked them and threatened to kill them if they ever broke up with him. A third former girlfriend told Selvaratnam that Schneiderman choked and hit her in bed, too.

Another woman, who declined to use her name in the story, told the magazine that a very drunken Schneiderman brought her to a place he was staying in the Hamptons after a party. As they were making out, he told her that women with high-powered jobs often want men to take charge in bed. “He became more sexually aggressive,” according to the New Yorker, and as the woman drew away, he slapped her across the face two times. She yelled at him and started crying. He said he’d misjudged her desires. “You’d really be surprised,” Schneiderman allegedly said. “A lot of women like it. They don’t always think they like it, but then they do, and they ask for more.”

This story is one of several disturbing anecdotes in the piece, which paints a detailed picture of Schneiderman as a man who courted good PR for his supposedly feminist politics—he has been a full-throated supporter of the #MeToo movement and a proactive advocate for reproductive rights—while demeaning, intimidating, and physically harming the women in his personal life. Three hours after the story was published, he announced his decision to resign his position.

Still, Schneiderman maintains that he did nothing wrong. He has denied that he threatened his girlfriends’ lives and says he will “strongly contest” the allegations made against him. In a statement to the New Yorker, he claimed that his partners wanted him to do everything he did to them. “In the privacy of intimate relationships, I have engaged in role-playing and other consensual sexual activity,” he said. “I have not assaulted anyone. I have never engaged in nonconsensual sex, which is a line I would not cross.”

It is useful to examine this attempted explanation and Schneiderman’s alleged pleas in the Hamptons through the lens of conversations surrounding the #MeToo movement. In the fall of 2017 and the early months of 2018, skeptics of #MeToo wondered whether expanded definitions of sexual harassment and assault would hamper normal sexual relations, primarily those between women and men. Affirmative consent, the “yes means yes” standard posed by some feminists as a way to make sure all parties to a sexual encounter are thoroughly on board with what’s going on, was mocked in several major news outlets as impractical, unnecessary, and profoundly unsexy. One writer in the New York Times likened the act of asking someone if they’d like to do a sexual thing before going ahead and doing it to the “clumsy and retrograde…childhood game of ‘Mother, May I?’”

It’s possible that Schneiderman didn’t actually think any of his sexual partners would like to be slapped during sex, and that his justification to the New Yorker and to the woman in the Hamptons were flat-out lies. Certainly, after his girlfriends expressed to him that his physical violence in the context of sex was unwanted, all decent people would agree that he should have stopped. Proponents of affirmative consent would go one step further and argue that he should have never hit anyone in the first place, unless he had her explicit consent.

Critics of affirmative consent would probably agree. I doubt we’ll soon see an editorial in the New York Times arguing for the right to assault sexual partners on the inkling they might like it, or because a former sexual partner liked it. Slapping someone in the face can be either an act of physical abuse or an act of mutual sexual gratification, depending on context and consent. But, unlike many other acts associated with sex, it doesn’t involve the mouth or genitals, and it sits slightly outside the bounds of mainstream, vanilla sex. It can also cause unwanted pain and injury.

This, I imagine, is why a slap seems different than the kinds of more mundane sexual activities that #MeToo skeptics think should be fine to try without consent. To my mind, whether or not it’s true, Schneiderman’s chilling defense of his slaps in the Hamptons—“a lot of women like it”—is an argument that these acts belong in the same category, after all. Yes, hitting someone in the face can cause them pain, so it’s best to get their permission first.

But what sex act doesn’t carry with it the possibility of pain? As Lili Loofbourow eloquently illuminated in a January piece, “The Female Price of Male Pleasure,” society accepts that women routinely experience pain in the context of sex, even the consensual kind. Besides that, every body bears its own unique threshold for pain, medical conditions, and history of physical trauma. A touch that feels pleasurable to most can result in searing pain for a few—and that few shouldn’t have to bear that pain for the right of the others to enjoy whatever benefits come from a sex life free from verbal consent. The only way to find out if someone wants a certain touch before hurting them is to ask. It’s not just below-the-belt activities that count here. Anyone who’s returned home with abrasions, soreness, bruising, or chafed skin after a makeout session with a too-eager partner will tell you that painful consequences can result from an encounter that never makes it past first base. These consequences can be bearable, even enjoyable, if the kisses were consensual. If they weren’t, that pain becomes a physical insult to emotional injury.

The burden is on people who dismiss the idea of affirmative consent to explain, then, which actions require consent and which do not. I think they will find the line rather difficult to place. If people don’t have to ask before kissing someone, should they ask before doing something a little more aggressive, like biting someone’s lips? If they’re already making out, do they have to ask before grabbing someone’s breasts or genitals? If they’re slapping someone’s face with consent, do they have to ask before slapping a less-fragile spot on their body, like their butt, or slapping just a little bit harder than usual?

I wonder if Katie Roiphe reflected on these truths before comparing a critic advocating for affirmative consent to “a low-level secret policeman in a new totalitarian state.” When Daphne Merkin said in the New York Times that a cultural standard of verbal consent would amount to “stripping sex of eros,” she probably wasn’t considering that an unwanted, un-agreed upon sexual touch could cause pain, and that causing someone pain without their permission is something society condemns in almost every other venue besides sex.

Writing in the same outlet, Bari Weiss contended that a woman who described a sexual encounter in which Aziz Ansari moved her hand to his penis “five to seven times,” followed her around a room every time she walked away, and refused to let her move away from him had merely experienced “bad sex,” not coercion. Yesterday evening, Weiss retweeted a statement that insinuated that Schneiderman is “an even bigger sinner” than Harvey Weinstein, who Schneiderman had enthusiastically rebuked in the press. Weiss tweeted that the New Yorker piece detailing Schneiderman’s alleged abuses was “stomach-turning” and made her cry. It’s not entirely clear where Weiss would draw the line between the two scenarios. In her piece about affirmative consent, Weiss warned that the concept was “radically redefining” sexual norms, and not in a good way. The onus should be on the less aggressive person to reject touches, she wrote, not on the more aggressive one to make sure they’re wanted: “If he pressures you to do something you don’t want to do, use a four-letter word, stand up on your two legs and walk out his door.”

I write this not to diminish the terrors endured by the women Schneiderman allegedly abused—their stories are horrifying, and their decision to speak out against a powerful man who allegedly threatened their lives shows incredible strength. It’s the magnitude of Schneiderman’s alleged violations and the absurdity of his excuses that, I hope, can help clarify why a cultural move toward affirmative consent makes sense, and why the arguments against it fail to account for the diversity of human bodies and the realities of sexual experience. As long as people are arguing that sex acts are sexiest when they come as a surprise, abusers will try to hide behind the defense that they were simply testing the limits until their partner told them to stop.