Affirmative Consent And The Fuzzy Legal Standard

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.

33 thoughts on “Affirmative Consent And The Fuzzy Legal Standard

  1. Hal

    “Romantic relationships are, by their nature, romantic, not financially remunerative.”

    You need to get out more, Counselor.

      1. delurking

        Don’t you have it backwards? If a sexual relationship were financially remunerative, that would be illegal (unless the remuneration comes from a third party paying both and filming them). Pretty much all romantic relationships are financially remunerative to at least one of the parties, usually both. Right?

          1. delurking

            More seriously, while I agree with you that it is better to express the concept directly than use analogies, there is a good response to the pickpocketing one that illustrates the point about romantic relationships:
            “Is it always crime if I take money out of my wife’s wallet without asking first, or if she takes money out of mine?”

            1. SHG Post author

              That is a better spin on the analogy than the one Corey and the Prawfs use, but it’s still less than sound. It’s really hard to come up with an analogy that conveys the point without qualifications, explanations and conditions, and it’s too easy to come up with a poor one that satisfies those who either want to believe or can’t be bothered thinking too hard about it.

            2. Liam mcDonald

              How about, “My wife said she needed money for groceries and I said take $20 out of my wallet. Instead she takes $50.”

  2. Steven M. Warshawsky

    This seems apropos —

    “Did you really think we want those laws observed?” said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against. . . . We’re after power and we mean it. . . . There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be much easier to deal with.” From Atlas Shrugged by Ayn Rand.

    1. SHG Post author

      This is why most people read Atlas Shrugged in junior high school, when its appeal is at its peak.

  3. albeed

    As I understand it, it I am safe on first because of an error (she had a beer), steal second and make it clearly to third but am called out because the third baseman didn’t say yes as she pulled my uniform off, I could hit the showers for years to come where I shouldn’t drop my soap.

    Gotta love baseball!

    1. MonitorsMost

      Diane knows her friend Victor is okay with her taking money so she can go see the baseball game. Diane thinks going to a baseball game means paying for parking and buying two beers. Victor thinks going to a baseball game means sitting in the bleachers and buying peanuts outside the stadium. Officer Krupke provides security for the game and arrests Diane for theft after she records the officer arresting another fan trial on her cell phone. At trial, the prosecution contends that watching Pablo Sandoval’s worthless fat butt waddle around the field does not meet the definition of baseball and therefore she committed theft because Victor is only okay if Diane takes money to watch baseball.

      Diane loses because while Sandoval’s lack of acumen itself is not sufficient, the combined ineptitude of Sandoval, Hanley Ramirez, Mike Napoli and Rick Porcello resulted in theft because the definition of professional baseball contains an implicit talent requirement.

    1. John Barleycorn

      I have often considered financing your time to consider a facetious consideration of the fictions that go from weave to woven.

      Non fiction is gonna make you look so pale.

  4. EH

    Dear God, I wish people would stop with the theft analogies. Talking about rape using theft analogies is just stupid.

    Still, for some reason it seems like most folks want an analogy. God knows why. It’s not like we don’t have an actual rape law to discuss.

    But if they insist on using an analogy at ALL (not that we need to, or should!) because, I dunno, they’re surrounded by 11 year olds, they should use something like “oral fraud between business partners:” One party loses money and claims it was fraudulent, and you need to decide whether it was a bad choice versus an intentional (metaphorical) screwing.

    It’s actually a pretty good analogy: most business conduct is legal and desirable, and is objectively similar to the alleged bad conduct; bad actions for the accused are hard to retrospectively distinguish from bad choices by the accuser;non-ideal choices often exist on both sides; there’s no physical evidence; there’s high relevancy of past practice and extraneous circumstances; desire to a ‘fix bad choice’ provides some incentive to make the accusation in the first place; and so on. Sometimes there’s even alcohol involved.

    And even with THAT analogy the affirmative standard looks idiotic. Which it is.

    You probably get to argue with a higher caliber of idiot than I do, but I have managed to get quite a few people to concede the “theft” argument using the analogy above.

    1. SHG Post author

      Sure, the theft analogy sucks. But what makes that give rise to another analogy? How about we express the concept directly without need for analogy?

      1. REvers

        The theft analogy isn’t all THAT bad. After all, the time a woman spends having sex – excuse me, being raped – is time stolen from studying for that degree in Wymyn’s Studies.

  5. JAV

    Since it’s often about subversion/inversion of consent, good luck to any couple who are into BDS&M.

      1. dm

        Not sure if it’s referencing the same case, but Volokh just posted a story about George Mason University and its assistant dean Ericson, who is front and center in the link you reference.
        Don’t these public institutions have in house counsel to explain constitutional rights to the SJWs running the asylum?

        1. SHG Post author

          I saw Eugene’s post, and it’s not the same case. But one would suspect that George Mason has the wherewithal to have competent counsel to explain the law to these administrators. And one would apparently be wrong. Don’t ask me to explain it. I can’t.

  6. Fyodor

    Is there an intent standard for any of this or is it strict liability? If the accused had a reasonable good faith but false belief that nonverbal responses indicated consent are they guilty?

    1. SHG Post author

      That’s the burden shifting part of the equation. It’s strict liability as its based solely on the victim’s assertion of lack of consent.

      1. Erik H.

        This is anther reason that analogies can sometimes be useful: They prevent you from accidentally using words like “victim.”

      2. JAV

        And by “victim” can’t we just say female? It’s always been the thread running through this initiative anyway. Maybe I’m being pessimistic, but I think that any man who tries to assert they were assaulted under this standard will be laughed at.

        “Silly cishet male, an erection is affirmative consent!”

        1. SHG Post author

          The only time they’re not victim is when they’re the survivor. That’s the narrative. Is no one paying attention?

  7. losingtrader

    My easy solution was to purchase a fortune cookie company and print the same message for each cookie.

  8. JD

    To make a better analogy involving money, and we all love better analogies, affirmative consent would be presuming theft on all transactions unless the female giving the money gave affirmative consent.

    Buy a gallon of milk, get rung up by a male cashier and pay. The mere act of paying is a crime unless she says yes. As in “yes I am affirmatively giving you my money for this milk I just bought”

    Can we have constructive affirmative consent? Implied affirmative consent? Constructively implied affirmative consent? Implied constructive affirmative consent? These questions are beyond me.

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