At Prawfsblawg, lawprof Jonathan Witmer-Rich is doing his best to “unpack” the affirmative consent standard for sexual interactions, as currently required by law on New York and California college campuses, coerced by Department of Education fiat on campuses elsewhere, “urged” by the president of the United States, propounded as the general rule by progressive law professors at the American Law Institute and demanded by feminists.
The crux of Witmer-Rich’s analysis is that while the phrase “affirmative consent” is commonly used interchangeably with “yes means yes,” that’s not the legal standard.
The catchphrase of “affirmative consent” is “yes means yes.” Journalists and advocates regularly use “yes means yes” as a shorthand for “affirmative consent.” A New York Magazine article referred to “the notion of ‘affirmative consent’” as “every step toward sex being explicitly agreed to with a ‘yes.’” On Vox, Jenée Desmond-Harris referred to California’s affirmative consent police as “making colleges replace the ‘no means no’ rule with a ‘yes means yes’ one.”
In my ongoing attempt to unpack what “affirmative consent” really means and does not mean, the first step is to be clear that affirmative consent standards do not, in fact, require an express verbal “yes.” The phrase “yes means yes” may be a helpful slogan for educating students to be proactive in communicating about sex, but it is not the legal standard.
There is no question that he’s technically correct. There is no law that mandates that a man must play “mommy, may I” out loud before any sexual touching. And more particularly, every law includes the caveat that consent may be given by “words or actions,” or some variation thereof. The point is that while “yes means yes” makes for an easy rule to express, fitting neatly on the little piece of paper tucked inside fortune cookies, it is not the legal standard.
Let’s look at the language:
California state universities: “affirmative, conscious, and voluntary agreement to engage in sexual activity.” (This is also the definition of “affirmative consent” given by the handy website affirmativeconsent.com).
New York state universities: “Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions . . . .”
A recent discussion draft of the ALI’s Model Penal Code defines consent as “a person’s positive agreement, communicated by either words or actions, to engage in a specific act of sexual penetration or sexual conduct” (Section 213.0(3) of the ALI MPC Discussion Draft, April 28, 2015) (my understanding is that this discussion draft has been withdrawn, but I believe this is the latest publicly-available proposal, and thus I am using it for discussion purposes).
None of these standards require express verbal agreement, and many explicitly recognize that consent can be given through actions as well as words.
Problem solved? Not exactly. Actually, not at all.
The purpose of a legal standard is to provide adequate notice of what one may, and may not, do. It’s easy to toss in words to a putative rule. How those words serve their purpose is another matter altogether. While the language “words or actions” was included to blunt the complaint that sexual contact mandated the express requirement of verbal permission, because pretty much everybody with any experience with sexual relations recognized that as ridiculous, it opened a meaningless hole.
Is a “come hither” look non-verbal consent? What if a woman unbuckled a man’s pants, and he in turn unbuttoned hers? Does “heavy petting” (does anyone still use that phrase?) mean that second base (does anyone still use that phrase?) is free for the taking? The answer may be yes or no to any of these. Nobody knows, and there are explanations that suggest it’s perfectly fine or sexual assault based on the exact same conduct.
All of which means that the inclusion of the word “actions” provides no notice, and offers no guidance. A legal standard that informs no one isn’t a legal standard.
Assuming that both parties to a sexual liaison have perfect recall and tell the truth, untainted by self-interest, the inclusion of the word “actions” still fails to provide any standard by which they can determine whether their conduct is lawful, or whether a finder of fact can later determine whether a sexual assault occurred. It’s not just that actions are ambiguous, which of course they are, but that they appear differently in post hoc explanation than in the heat of the moment.
So why aren’t women, as well as men, disturbed by this rule that offers no clear notice of what they want, what they feel protects their personal integrity from sexual assault and rape? Certainly, a clear and uncertain “no” would serve to put a guy on notice that she’s drawn a line that he’s not to go past unless he is, in fact, engaged in a sexual assault or rape.
The answer has been backward, that clarity and self-protection would shift the responsibility to women for men raping. As the thinking-challenged cry, the answer should just be “don’t rape,” which is uncontroversial and utterly worthless. Lawprof Corey Jung provides a theft analogy often used to rationalize what’s perceived as victim blaming.
Consider this scenario:
Diane knows her friend Victor has a lot of money in his pocket. Rather than ask him for money or threaten him with violence, Diane tries her hand at pickpocketing. She successfully removes the money but is arrested by a police officer watching nearby. At trial, Diane contends that she did not commit theft because Victor never specifically said she couldn’t have the money.
Diane loses because theft has an implicit affirmative consent standard. We do not start with the presumption that everyone is willing to share their valuable items until told otherwise.
Do we really say the burden is on the defendant in such cases? No.
The analogy is terminally flawed, as the situations are hardly comparable. Romantic relationships are, by their nature, romantic, not financially remunerative. But if you squint hard enough, you can buy into any rationalization, no matter how inapt.
Which, ironically, brings us back to Witmer-Rich’s point, that express verbal consent is not the legal standard (which makes it unnecessary to point out its failings). But what this assertion fails to accomplish is to provide any clarity to what is the legal standard. Which actions suffice? Which actions give the party to be charged notice that he’s got consent?
If there is sincerity to the claim that women (and progressive academics) want to prevent the horrible trauma of sexual assault and rape, then the legal standard of “no means no,” a clear communication of where the line is and when it’s crossed, would be the only logical standard. While it may not be “yes means yes,” it certainly isn’t “no means no” anymore.
Excuses, bad analogies and rationalizations aside, the message is that proponents of affirmative consent have set a trap for the unwary, and they have no real interest in a legal standard that will protect women from rape and sexual assault, but prefer this fuzziness that is calculated to make sure that no one knows when an offense occurs, and it can be left to the next day, month, year for an accuser to decide whether conduct occurred with post hoc consent.