The XX Factor

“No Means No” Isn’t Enough. We Need Affirmative Consent Laws to Curb Sexual Assault.  

Vice President Joe Biden announcing the release of the first report of the White House Task Force to Protect Students from Sexual Assault.  

Photo by Win McNamee/Getty Images

The California legislature is weighing a bill that would require college students to secure “affirmative consent” from their partners at every stage of sexual activity. If the bill is passed, colleges must use the legislature’s definition of consent in their sexual assault policies or risk losing state funding for student financial aid.

You may have heard of this bill as the one that would require students to draft up a written sex contract before bed or constantly proclaim “yes, yes, yes!” at every slight readjustment, thereby practically redefining most sex as rape. The Fresno Bee editorial board interpreted the bill to mean that “ ‘yes’ only means ‘yes’ if it is said aloud.” The Daily Californian, the independent student newspaper of UC–Berkeley, also claimed that affirmative consent is necessarily verbal. RH Reality Check advanced the game to approvingly say that affirmative consent requires “a verbal or written yes.” If consensual sex entailed that level of consent, millions of couples would be unsuspectingly raping one another every night of the week.

But the bill doesn’t actually require those things. It calls for “an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.”* (While the bill initially warned that “relying solely on nonverbal communication can lead to misunderstanding,” that language has since been stricken.) Update, June 24, 2014: As of June 18, the bill’s definition reads: “‘Affirmative consent’ means affirmative, conscious, and voluntary agreement to engage in sexual activity.”

It’s understandable that commentators would jump to the conclusion that affirmative consent requires sex partners to engage in a constant Q&A—or else a finely drawn sex contract—because the bill doesn’t define what “clear, unambiguous” consent would actually look like. Perhaps some remember Antioch College’s infamous 1991 sexual assault rules, which did require all partners to verbally request and assent to every stage of sexual activity—“body movements and non-verbal responses such as moans” didn’t cut it. But the California legislation’s language becomes clearer when it specifies which situations do not constitute consent. “Lack of protest or resistance does not mean consent, nor does silence mean consent,” the bill reads. “The existence of a dating relationship between the persons involved, or the fact of a past sexual relationship, shall not provide the basis for an assumption of consent. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.” Parties can’t consent when they’re asleep or unconscious, or incapacitated from drugs or alcohol.

This standard improves on the old “no means no” model in a number of ways. A partner who is asleep or passed out can’t say “no.” Neither can a partner who’s frozen in shock or fear when an encounter escalates into an assault. Victims who are threatened with sexual assault aren’t always equipped to respond in rape prevention talking points. Just like with any other violent physical assault, many victims respond by shutting down, going silent, or laying motionless, hoping not to anger their attackers further, or disassociating from the attacks as an attempt at self-preservation. Also, consenting to sex one time doesn’t mean consenting to sex any other time. And consenting to one act (like vaginal intercourse) doesn’t imply consent for all other acts (like anal sex). Having sex with a person who is lying limply on a bed is not consensual, unless that person happens to be really, really into that—but that’s a situation that requires a conversation, not an assumption.

So are affirmative consent laws a good idea? If they are broad enough to include nonverbal cues, I think so. If we can admit that enthusiastic consent is often communicated in body language or knowing looks, then we must also accept that the lack of consent doesn’t always manifest itself in a shouted “no” or “stop,” either. It shouldn’t be the sole responsibility of the uninterested party to speak up during a sexual encounter. If you think it’s easy for a person to just say no, then why would it be so hard for his or her partner to just ask?

We could all stand to be more communicative about what constitutes mutually enjoyable sex. But it’s particularly necessary on college campuses, where students are at a dramatically heightened risk of sexual assault, and schools are required by federal law to fight the problem to ensure equal access to education for everyone. It’s a bit ironic that the lawmakers behind the California bill seem more comfortable specifying what constitutes rape than actually describing what clear, unambiguous, enthusiastic consensual sex looks like. I suppose that’s because consensual sex is intimate and fraught; like obscenity, you kind of know it when you see it. But the bill also requires colleges to implement prevention and outreach programs around sexual assault, which should teach students about “the practical implications of an affirmative consent standard,” and would hopefully spark honest conversations about what is and isn’t over the line.

Like RH Reality Check’s Martha Kempner, I don’t buy that sexual assault is largely a product of miscommunication. Most rapes are committed by dedicated serial rapists. But some assaults are committed by people who act recklessly, make a terrible mistake, and will never assault again. It seems clear that after decades of absorbing the message of “no means no,” many students are still confused about what it means when a victim stays silent. An affirmative consent standard could help clarify this and would also help the vast majority of students on campus—people who will never be perpetrators or victims, but will almost certainly be their friends—support victims after the fact. It’s a lot easier to report a rape if you know that your college won’t dismiss your complaint because you didn’t say “no.”

Correction, June 24, 2014: This post originally misstated the language of the California bill as of June 16. The post stated that the bill’s definition of affirmative consent could be “expressed either by words or clear, unambiguous actions.” The bill didn’t clarify how consent should be expressed. It was amended with a new definition on June 18. The post has been updated to reflect this.