Are You OK With This? An Argument for Affirmative Consent [Opinion]

The recent affirmative consent laws in California and New York both mandate something that is unusual in a legal context: dialogue.

Affirmative consent laws require college students to have open conversations about sex — in advance of any activities. California’s law, passed in 2014, is often characterized as the “yes means yes” standard. The New York law, passed just this year, defines affirmative consent as “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.”

In the wake of these new laws, lots of students — and schools — have struggled to characterize what affirmative consent looks (and sounds) like in real-world situations.

A Brief History

Affirmative consent culture has a 24-year history that begins at Antioch College, which in 1991 adopted a formal set of consent rules known as the Sexual Offense Prevention Policy. The policy requires that students obtain verbal consent each time they have sex, and specifies that “each new level of activity requires consent.”

At least 1,400 colleges and universities across the nation have adopted affirmative consent policies since California passed SB 967, which holds:

In order to receive state funds for student financial assistance … postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking … involving a student, both on and off campus. Policies must include “an affirmative consent standard in the determination of whether consent was given by both parties to sexual activity.”

New York is the only state besides California to have passed legislation concerning the active consent of sexual activity on college campuses. There are, however, bills currently under consideration in 11 states.

How Supporters and Detractors Characterize Affirmative Consent

Characterizations of affirmative consent seem to differ, with feminists, sexual assault activists, and educators describing the new policies as exciting ways to ensure that sex is both consensual and fun — see campus advocacy group Ultraviolet’s video as an example. Advocates of affirmative consent say the laws exist to protect both parties — if the two people engaged in sexual activity repeatedly check in with one another, then there can be no doubt about who wanted to do what and when, a circumstance that would ultimately — ideally — obviate the chances that the “morning after” would bring any feelings of violation, guilt, shame, or confusion.

On the flip side is the more libertarian view of people like Cathy Young, frequent contributor to Reason, who writes in the Washington Post: “We need to stop prosecuting bad behavior as rape.” Sex, in her view, is confusing for both parties. “There is little regard,” she writes, “for the preferences of people who like intuitive give-and-take rather than requests and directions.”

Neither of these typically polarizing views fully captures what affirmative consent laws are meant to do. They are, in short, intended as an antidote to “No Means No,” the slogan of the anti-rape movement for three decades. Rather than “No Means No,” those who believe in affirmative consent want “Yes Means Yes,” instead — or in the case of New York State, “Enough is Enough.”

What Affirmative Consent Looks Like

As Deeanna Button, a professor of criminal justice at Stockton University remarked in an unintentional homage to Meg Ryan when she addressed the college’s annual SlutWalk last spring, “I’m looking for a breathy ‘Yes! Yes! Yes!,’” a characterization of affirmative consent that drew joyful hoots and hollers from the almost 200 undergraduates and faculty in attendance.

In an ideal setting, with an ideal partner, affirmative consent could be everything it is claimed to be: sexy, sensual, flirtatious, fun. The realities of youthful sex, however, are often somewhere closer to the lines that Young and her cohort draw. Blurred lines. Experiments. Questions.

What is particularly troublesome about the language surrounding the debate is that both sides tend to cast the affirmative consent issue in the parlance of traditional gender roles, and in almost exclusively heteronormative terms, with the male as the initiator, and the female as his object. Not all couples on college campuses, or elsewhere, are man and woman. Nor is it the woman in opposite-sex relationships who is always the one acted upon. Fortunately, the language of New York’s definition of affirmative consent acknowledges this: “The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.”

But there’s an irony here, especially as affirmative consent laws apply to the policies being shaped and instituted on college campuses, where students often spend their days in classes learning radical gender theory, only to find a real world in which the media present sexual activity — and acts of aggression — with very little nuance.

Affirmative consent, in short, is the sound of two people (who are about to engage in sexual activity) talking. What they must each say is “yes.” And they must say yes to each new act and each new encounter. The words they use, however, may vary. And these can be challenging to prescribe.

Why Affirmative Consent Is Necessary

Affirmative consent laws gained traction when the 2012 Steubenville, Ohio, rape of an unconscious, underage young woman not only occurred, but was recorded and shared on social media by high school students.

California’s SB 967 explicitly states that consent cannot be implied, and cannot be given if the person is unconscious. It may come as a shock that it’s necessary to make a policy about not having sex with an unconscious person, but it seems there are still people — lots of them — who don’t think there’s anything wrong with this, or who know it’s wrong, but only care about whether they get caught. The law’s clear statement that the existence of a dating relationship between two people does not imply consent is a remnant — and unfortunately, a necessary one — of the days when women were the physical property of their fathers and husbands.

The American Law Institute (ALI) has only recently begun a critical review of the sexual assault guidelines it established in 1962. According to Judith Shulevitz’s June 2015 New York Times article, when a draft of the revisions circulated before the ALI’s most recent yearly gathering, “some highly instructive hell broke loose” regarding the language, which emphasizes the “criminalization of what we think of as ordinary sex and of sex previously considered unsavory but not illegal.”

Like all policy, affirmative consent is grounded in both precedent and the dictates of contemporary society. The issue is how thoroughly recent history remains with us while simultaneously seeming, via advancements in civil rights, like the distant past. It was just in 1993 when marital rape was acknowledged as a federal crime in all 50 states (though exemptions would persist for several more years).

For students entering American colleges and universities this semester, 1993 is the distant past, a past that precedes even their birth. And while it may seem meddlesome, or even absurd, to tell them that sexual encounters must be both mutually and constantly agreed upon by both parties, it is possible that this kind of education might lead, eventually, to a paradigm shift wherein we think before we act, and we think of another person’s body, and pleasure, as sovereign, inalienable, with permission required.

Read the latest updates and opinions on education-related news, and Noodle Expert Michelle Issadore’s article Why Campus Reporting Options are Necessary for Survivors of Sexual Assualt.