The campus crusade against rape has achieved a major victory in California with the passage of a so-called “Yes means yes” law. Unanimously approved by the state Senate yesterday after a 52-16 vote in the assembly on Monday, SB967 requires colleges and universities to evaluate disciplinary charges of sexual assault under an “affirmative consent” standard as a condition of qualifying for state funds. The bill’s supporters praise it as an important step in preventing sexual violence on campus. In fact, it is very unlikely to deter predators or protect victims. Instead, its effect will be to codify vague and capricious rules governing student conduct, to shift the burden of proof to (usually male) students accused of sexual offenses, and to create a disturbing precedent for government regulation of consensual sex.
No sane person would quarrel with the principle that sex without consent is rape and should be severely punished. But while sexual consent is widely defined as the absence of a “no” (except in cases of incapacitation), anti-rape activists and many feminists have long argued that this definition needs to shift toward an active “yes.” Or, as the California bill puts it:
"Affirmative consent" means affirmative, conscious, and voluntary agreement to engage in sexual activity. … Lack of protest or resistance does not mean consent, nor does silence mean consent.
The law’s defenders, such as feminist writer Amanda Hess, dismiss as hyperbole claims that it would turn people into unwitting rapists every time they have sex without obtaining an explicit “yes” (or, better yet, a notarized signature) from their partner. Hess points out that consent can include nonverbal cues such as body language. Indeed, the warning that “relying solely on nonverbal communication can lead to misunderstanding,” included in the initial draft of the bill, was dropped from later versions. Yet even after those revisions, one of the bill’s co-authors, Democratic Assemblywoman Bonnie Lowenthal, told the San Gabriel Valley Tribune that the affirmative consent standard means a person “must say ‘yes.’ ”
Nonverbal cues indicating consent are almost certainly present in most consensual sexual encounters. But as a legal standard, nonverbal affirmative consent leaves campus tribunals in the position of trying to answer murky and confusing questions — for instance, whether a passionate response to a kiss was just a kiss, or an expression of “voluntary agreement” to have sexual intercourse. Faced with such ambiguities, administrators are likely to err on the side of caution and treat only explicit verbal agreement as sufficient proof of consent. In fact, many affirmative-consent-based student codes of sexual conduct today either discourage reliance on nonverbal communication as leaving too much room for mistakes (among them California’s Occidental College and North Carolina’s Duke University) or explicitly require asking for and obtaining verbal consent (the University of Houston). At Pennsylvania’s Swarthmore College, nonverbal communication is allowed but a verbal request for consent absolutely requires a verbal response: If you ask, “Do you want this?”, you may not infer consent from the mere fact that your partner pulls you down on the bed and moves to take off your clothes.
Meanwhile, workshops and other activities promoting the idea that one must “ask first and ask often” and that sex without verbal agreement is rape have proliferated on college campuses.
The consent evangelists often admit that discussing consent is widely seen as awkward and likely to kill the mood — though they seem to assume that the problem can be resolved if you just keep repeating that such verbal exchanges can be “hot,” “cool,” and “creative.” It’s not that talk during a sexual encounter is inherently a turn-off — far from it. But there’s a big difference between sexy banter or endearments, and mandatory checks to confirm you aren’t assaulting your partner (especially when you’re told that such checks must be conducted “in an ongoing manner”). Most people prefer spontaneous give-and-take and even some mystery, however old-fashioned that may sound; sex therapists will also tell you that good sex requires “letting go” of self-consciousness. When ThinkProgress.com columnist Tara Culp-Ressler writes approvingly that under affirmative consent “both partners are required to pay more attention to whether they’re feeling enthusiastic about the sexual experience they’re having,” it sounds more like a prescription for overthinking.
Of course anyone who believes that verbal communication about consent is essential to healthy sexual relationships can preach that message to others. The problem is that advocates of affirmative consent don’t rely simply on persuasion but on guilt-tripping (one handout stresses that verbal communication is “worth the risk of embarrassment or awkwardness” since the alternative is the risk of sexual assault) and, more importantly, on the threat of sanctions.
Until now, these sanctions have been voluntarily adopted by colleges; SB-967 gives them the backing of a government mandate. In addition to creating a vaguely and subjectively defined offense of nonconsensual sex, the bill also explicitly places the burden of proof on the accused, who must demonstrate that he (or she) took “reasonable steps … to ascertain whether the complainant affirmatively consented.” When the San Gabriel Valley Tribune asked Lowenthal how an innocent person could prove consent under such a standard, her reply was, “Your guess is as good as mine.”
Meanwhile, Culp-Ressler reassures her readers that passionate trysts without explicit agreement “aren’t necessarily breaches of an affirmative consent standard,” since, “if both partners were enthusiastic about the sexual encounter, there will be no reason for anyone to report a rape later.” But it’s not always that simple. One of the partners could start feeling ambivalent about an encounter after the fact and reinterpret it as coerced — especially after repeatedly hearing the message that only a clear “yes” constitutes real consent. In essence, advocates of affirmative consent are admitting that they’re not sure what constitutes a violation; they are asking people to trust that the system won’t be abused. This is not how the rule of law works.
This is not a matter of criminal trials, and suspension or even expulsion from college is not the same as going to prison. Nonetheless, having the government codify a standard that may implicitly criminalize most human sexual interaction is a very bad idea.
Such rules are unlikely to protect anyone from sexual assault. The activists often cite a scenario in which a woman submits without saying no because she is paralyzed by fear. Yet the perpetrator in such a case is very likely to be a sexual predator, not a clueless guy making an innocent mistake — and there is nothing to stop him from lying and claiming that he obtained explicit consent. As for sex with an incapacitated victim, it is already not only a violation of college codes of conduct but a felony.
Many feminists say that affirmative consent is not about getting permission but about making sure sexual encounters are based on mutual desire and enthusiasm. No one could oppose such a goal. But having the government dictate how people should behave in sexual encounters is hardly the way to go about it.
Cathy Young is a contributing editor at Reason magazine.