A number of essayists, at Slate and elsewhere, have criticized the affirmative consent policies that are increasingly being adopted at universities across America. The basic idea underlying these policies is that “s/he didn’t say no” should not be an acceptable excuse for initiating unwanted sexual contact. It raises the bar from “no means no” to “yes means yes.” For sexual conduct to be acceptable, each participant must understand that their partner(s) are actively and continuously agreeing that the experience should continue.
I share some concerns about how these policies are being implemented. In particular, they will remain irrelevant as long as rape investigations are handled by university officials who are biased against admitting that sexual assaults happen on their turf and who lack adequate training to be effective as either investigators or victims’ counselors and advocates, let alone both. However, I do not agree that the affirmative consent standard is the problem. The problem is that it is not universal.
If you observe the way Americans tell stories about sex—in porn, romance novels, popular movies, song lyrics, even in our ineffective abstinence-only sex-ed classes and our schoolyard gossip—it becomes clear that part of our tacit understanding of “good” sex is that it is spontaneous, initiated by a strong male and yielded to by a compliant female. We actively discourage communication. A real man knows intuitively when his woman is ready and how to please her. Asking, or even worse getting told what to do, is a turn off and a threat to his masculine identity. On the flip side, only sluts know so much about sex that they come on to a man, or can describe what they want. These stereotypes set the stage for young people to hurt each other—they’re part of the foundation of what activists describe as rape culture. They must be directly targeted and dismantled.
One advantage of having aberrant desires is that it forces you to learn to articulate what you want, which is a valuable skill for anyone, in or out of the bedroom. Even if your tastes are completely “normal” and you’re looking for a long-term monogamous partner, shedding embarrassment about discussing sex frankly, and conquering fears of rejection, will improve your sexual and romantic life. When you have a new flame, you can find ways to hint at what you want in flirty conversations, or by pointing at examples of pop culture or literature that model what you’re into, or even by sharing porn. You can tell funny stories about past encounters, if you’ve had any. If somebody’s threatened by the idea that you have a sexual past, or thinks it makes you a slut, you’re well rid of them. (If you don’t have a sexual history, you can still share what you’ve learned from exploring your sexuality on your own. And if you haven’t even spent time discovering what you enjoy on your own, then you’re probably not ready to have a partner.) Learning about each other’s histories and fantasies should be a fun way to build intimacy, long before any clothes come off. Once you’re getting hot and heavy, consent can be sexy:
(Playful voice) “I saw that look. Are you thinking about [X]?”
“If you’d like me to [Y], honey, you’re gonna have to beg.”
“Ohhh, you gorgeous thing … I want you to [Z]!”
The California affirmative consent law explicitly acknowledges that even nonverbal cues—appreciative moaning or physically “leaning in” to a partner’s touch—can constitute affirmative consent. There have been legitimate criticisms of the law—in particular, it may be problematic to create a different standard for campuses than for the rest of the state, and for college students than for everyone else. The larger problem, though, is that we train young people to expect, and act on, the lower standard.
Ignore the legal standard for a moment, and imagine what it would mean to elevate our moral and ethical standards—to live in a “consent culture.” You wouldn’t need a separate campus policy about “affirmative consent,” because students would have picked it up simply from how their parents talked about sex, what they heard in songs about love and relationships, what they saw on television. It would be understood, even by kids who don’t yet know the mechanics of intercourse, that sex is something that people do together, for each other, not something that one person does to another. They should always come to it with mutual enthusiasm. It’s definitely not something that “girls let boys do,” as if they were passive bystanders in their own bodies. Or even worse, “let boys get away with.” Yuck.
I’ve heard women express concern about their sons going off to college, having an awkward encounter, and finding themselves at the wrong end of a life-altering accusation. Even in the absence of the new policies, our current cultural story about sex is setting up both genders to get hurt. More of this pain gets inflicted on women, because of all the double standards—girls are gatekeepers, boys will be boys; men are studs, women are sluts; women should be sexy and available, but not too much, so their choices can be criticized and second-guessed no matter what. But young men get hurt as well. Even leaving aside accusations and disciplinary actions, you can carry around a lot of guilt if you fumble through your own deflowerment and then learn that your partner felt taken advantage of or just icky about the experience.
So, worried parents, here’s the lesson you should be gleaning from those rare cases of false or overblown accusations: Teach your kids to practice affirmative consent! It is literally the most important thing they can learn about sex. It’s even more fundamental than protection against pregnancy and STIs—that only matters if your partner wants you in bed with them in the first place. From the very first time you have a “sex talk” with your kids, tell them that their brain is their biggest sex organ. Tell them to use their words, even if it’s awkward or embarrassing—sex is always a little awkward at first. Make sure they understand that if it’s not blazingly obvious that their partner wants to be doing what they’re doing, they should stop.
Embed that standard in the broader culture, and it becomes more clearly reasonable to also set it as the legal standard. There are various degrees of sexual misconduct, just as there are various degrees of killing, from premeditated murder down to negligent homicide. The popular understanding of “forcible rape” may be a more serious crime than “unintentional” or “gray” rape. But using an unenthusiastic partner for sex, even if they never yelled “No!” or fought back, but rather gave in because they were drunk or insecure or afraid, is still an awful thing to do. The latter is a lesser sin, but it should still carry consequences—at the social level at absolute minimum, and some cases should carry a risk of civil liability or criminal charges. If you don’t want to face those consequences, don’t put yourself at risk for them.