Affirmative Consent: Yes and No

Recently, a law was passed in California that redefines how sexual relations happen on college campuses. The law states that affirmative consent must be given throughout sex. Past relationships between the two individuals cannot be taken as consent and neither can consent be presumed when people are incapacitated from drugs or alcohol, unable to communicate, or asleep or unconscious in some way.

Affirmative consent as per this law is defined as “…affirmative, conscious, and voluntary agreement to engage in sexual activity”

There has been considerable uproar over this law, from Reason to NYMag, Time, The Nation and more.

One of the biggest arguments against this law are questions of justice in the procedure itself.

First, let’s make sure that everyone here understands one thing: this law only applies to college campuses in California. It cannot be used to send anyone to jail and can, at most, be used to expel a student for presumably raping or sexually assaulting another student. Though, good luck with that.

Detractors say that this law will force all men into being considered rapists, makes everyone a rapist, shifts the burden of guilt, or it simply won’t do anything against real rapists.

Regardless of these objections, the correct view seems to me to be: affirmative consent is good as a cultural norm, but bad as a law.

Affirmative Consent as a Cultural Norm: Yes

It should be well understood by libertarians and anarchists that laws usually don’t end up where the grassroots supporters want them to go. A good example of this (one that Nathan Goodman noted back in May) is the USA Freedom Act. An act that was supposed to remove big features of the surveillance state, yet ended up being compromised and severely weakened before it was passed.

But laws are not the same as cultural norms. Laws are things that address issues that we believe are justifiably preventable by force. Cultural norms can be things that we believe are either justifiable in some way, but don’t necessarily have to be. They are things that shouldn’t just be left up to the individuals in a given relationship, instead a general community can help formulate standards that will cultivate a given environment for its members. Having affirmative consent as a guiding principle or cultural norm, then, is very different from having it as a law.

As a cultural norm it becomes a bigger conversation between equals. It becomes possible to challenge, revise and reorganize our lives in accordance with this norm. When we suggest to our friends that they should aim for affirmative consent, or hold an impromptu protest, invite a public speaker on the matter, hang up signs or integrate this principle into our daily lives, then we are trying to cultivate a norm about consent and how we deal with its absence.

For example, there’s a difference between wanting affirmative consent as a standard and wanting it to be the law.

As Tara Culp-Resser of ThinkProgress writes,

Affirmative consent isn’t based on the idea that every sexual encounter is a rigid contract between two parties. No one is suggesting that college students need to run through a checklist before unbuttoning each other’s shirts. Instead, it’s more about broadly reorienting about how we approach sex in the first place. …

Under an affirmative consent standard … both partners are required to pay more attention to whether they’re feeling enthusiastic about the sexual experience they’re having. There aren’t any assumptions about where the sexual encounter is going or whether both people are already on the same page. At its very basic level, this is the opposite of killing the mood — it’s about making sure the person with whom you’re about to have sex is excited about having sex with you.

Making sure someone else is enthusiastic about what you’re doing with them requires you to consider their wants and needs, think about how to bring them pleasure, and ultimately approach sex like a partnership instead of a means to your own end.

It should also be made clear that non-verbal cues are treated as a legitimate method of obtaining affirmative consent under this law. If, for example, you ask someone if you can kiss them and they respond by passionately kissing you, I don’t think you or the person you’re involved with, or any disciplinary board is going to take that seriously as an example of “sexual assault”.

There are concerns that affirmative consent, even as a norm or a standard, will make sex “unsexy” or make the whole experience not fun.

Shikha Dalmia, a senior policy analyst at Reason.com writes,

The truth is that, except in the first flush of infatuation, both partners are rarely equally excited. At any given moment, one person wants sex more passionately than the other. What’s more, whether due to nurture or nature, there is usually a difference in tempo between men and women, with women generally requiring more “convincing.” And someone who requires convincing is not yet in a position to offer “affirmative” much less “enthusiastic” consent. That doesn’t mean that the final experience is unsatisfying — but it does mean that initially one has to be coaxed out of one’s comfort zone. Affirmative consent would criminalize that.

It’s difficult to see exactly where Dalmia wants us to go with these conclusions. Is equal excitement presumed by advocates of affirmative consent? Does affirmatively and enthusiastically consenting to sexual acts from your partner mean that you’re always into it as much as they are? I don’t recall anyone suggesting this or the norm requiring it. So what does this really have to do with the idea of affirmative consent?

Nevertheless, I find it plausible that talking a lot could kill the mood for some people, but that’s, perhaps, why they rely on non-verbal cues. But, as I said before, this is perfectly allowable: both under the law and, so I’d presume, for advocates of the norm generally. Explicitness in sexual relationships is awesome, but it isn’t everything and, for people who are good with body language and long-term partners who understand each other and know each other well, it could probably work with even less explicitness.

Even then, let’s say you have two people who are fairly neuro-typical, they’re both well-intentioned and they’re both sober and drug free, the worst thing that’s probably gonna happen (via an emphasis on body language and facial movements, less explicitness in general, etc.) is a simple mistake.

But in that ideal situation it is still a good idea to use affirmative consent; partly because it’s too easy to just say, “oh I didn’t understand you didn’t want X” as a way to justify violating someone’s boundaries. To be clear, if this happened only once and they took steps to ensure it didn’t happen again, that’s different.

The problem here is that rapists can easily use a very non-explicit system to take advantage of people that do not say what turns them on. It’s also an easy way to, generally, get away with rape when facing reprimands from a given system. You can simply claim that they said no at first, but you “convinced” them otherwise. Or they didn’t say no after you did X.

And this is an ideal situation with totally vanilla sex. It gets more complicated with any form of BDSM or slapping where it’s pretty much mandatory to talk stuff out beforehand.

Sure, the affirmative consent model isn’t perfect and people who want to exploit others can still get around it (and have), but it’s a lot harder to gaslight when you’ve talked a little about things first. Talking, instead of everyone just presuming what’s cool or leaving it mostly up in the air, can also make things go a lot smoother — sexually speaking.

So while I understand the spontaneous nature of sex is important if making sure people’s boundaries are being respected during a sexual encounter is killing the “sex appeal” for you, then my suggestion would be to re-examine how you see sex.

A lot of how you re-examine sex is to look at consent 101 and how you can use affirmative consent in a myriad of ways, not just boringly ask, “do you want to have sexual intercourse with me on this fine evening?”

This isn’t the main point, though. Whether affirmative consent is “sexy” or not really shouldn’t matter in the end. It should matter how it (as a cultural norm or a law) affects the prevalence of rape. As of now there isn’t much data on how these sorts of campaigns affect rape. There was a campaign in some Canadian provinces that discouraged rape and encouraged affirmative consent with one city seeing a decrease in rape but another seeing an increase.

Where the effectiveness is concerned critics have pointed to a study done in 2002 by David Lisak and Paul Miller that, according to them, proves that rapists are a minority and that they aren’t people who innocently miscommunicate or just don’t understand they’re rapists.

Yet, even if this true, I believe that the critics overstate how much this proves. Even if it’s completely true that the majority of rapists are repeat offenders and people who understand what they’re doing, this doesn’t preclude them from not seeing themselves as rapists in every situation. Though it can certainly be the case that they do know they’re rapists. It also doesn’t stop there from being a non-negligible minority of people who do not understand what they’re doing is rape.

A closer look at this study reveals that the questions make it difficult to see where affirmative consent came into those relationships. We only know from this study that these sexual encounters ended in rape or sexual assault. So we cannot presume from this study alone that the affirmative consent model would hold no negligible effect on rapists.

It’s worth noting that the study asks questions about doing things that are very easily identifiable as rape. So it’s not clear how this study would have been able to include people who did things that they didn’t realize were non-consensual.

It’s not clear how this study shows anything at all about whether or not affirmative consent could prevent rape. Because if the person had committed rape in a way that affirmative consent could have prevented, it’s perfectly possible that they could go on not realizing that they had done so.

Now, we don’t have the data necessary to know the results of this norm as law will have. And it’s possible the norm could do more damage than good. But with such little data either way it also seems irresponsible to not let the universities declare their own methods of trying to deal with sexual assault on campus. If we are to figure out how to minimize the role of assault and rape in student’s lives, then experimentation should not only be allowed but encouraged.

Finally, the alternative of “no means no” seems to result in an implication being made about how consent works and furthermore acts as a tax on (predominately) women as Amanda Taub at Vox writes,

The law didn’t come out of nowhere. It emerged as a response to a status quo that has proved to be an all-too-powerful tool for sexual predators, because it enables them to claim to see consent in everything except continuous, unequivocal rejection. That status quo puts women in the position of having to constantly police their own behavior to make sure that they are not giving the appearance of passive consent. That’s not only exhausting; it’s limiting. It reinforces power imbalances that keep women out of positions of success and authority.

There are plenty of other problem Taub highlights with the usual way of thinking. It leads to situations where people could justify fairly clear signs of refusal as acquiescence. This in turn puts a big burden on the women to refuse a man who is, often times, much stronger than her.

That’s all leaving aside the problem of the police and how they often can’t help or sometimes flat out refuse to help survivors or question them the whole time instead of taking them seriously. And yes, false reporting is actually a really really rare occurrence. Compound this with massive under-reporting and low prosecution rates (both on campus and generally) and I doubt that women are going to be using this as a weapon or all men turned into rapists.

We need to change the culture of how people understand sex as well as rape. We can’t do that by standing by while our current model of “no means no” proves ineffective. Let’s at least give different norms a chance to play out and see how they affect the reality of rape culture.

Affirmative Consent as a Law: No

None of the above is meant to deny that there are legitimate criticisms of this law as a law.

The law actually includes a section where it says that,

This bill would require the governing boards of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions, in order to receive state funds for student financial assistance, to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking that include certain elements, including an affirmative consent standard in the determination of whether consent was given by a complainant.

This isn’t a part of the law I’ve seen people critique, but it’s basically what makes this law a law and not just a cultural norm. The state is engaging in economic manipulation. If the institutions of higher education in California don’t want this affirmative consent standard for disciplinary actions then they may be denied funding from the state.

That’s the real part of this law that is troubling. Because the question must be asked: Are these institutions abiding by this standard because they genuinely want to and moreover understand what’s happening on campuses? Or are they doing it to merely appease the state and get more funding? Even worse, most campuses will say “of course we want this standard with or without the money” but time will tell how effectively or honestly they actually care about this standard or enforcing it on campuses.

Another problem with this law is the problem of having feminism and the state working together as Laurie Essig, an associate professor of sociology and gender, sexuality and feminist studies helpfully points out,

Feminists work hard to show that the state is both racist and sexist, and yet some feminists imagine that very same state making the world a safer place for them.

If feminists want to help survivors then it’s best not to rely on the state whose main agents, the police, are notorious for not believing survivors. Survivors often don’t report and there’s plenty of good reasons not to or at least not insist that they should. As anarchists if we don’t trust cops with the basic job of protecting our streets or protecting our property, then why would we expect them to protect the bodies of survivors? There are also neurological reasons why cops simply won’t believe survivors in many cases.

There is a general problem with trying to codify sexual relations instead of leaving them up to the individual people. There’s obvious problems with the current framework of “no means no” and the focus on women having to say “no” instead of both people needing to get a “yes”. But even so there’s going to be situations where enthusiastic consent is murky or the situation is going to be a lot more gray than the people who wrote this law thought about. And unlike community standards and norms, laws aren’t able, by their very nature, to change as quickly or effectively in response to public demand.

Cathy Young in her “The Problem with ‘Yes Means Yes‘” notes that,

Nonverbal cues indicating consent are almost certainly present in most consensual sexual encounters. But as a legal standard, nonverbal affirmative consent leaves campus tribunals in the position of trying to answer murky and confusing questions — for instance, whether a passionate response to a kiss was just a kiss, or an expression of “voluntary agreement” to have sexual intercourse. Faced with such ambiguities, administrators are likely to err on the side of caution and treat only explicit verbal agreement as sufficient proof of consent.

While I’m not convinced of what the standard reaction to non-verbal agreements would be (I think the passionate kiss example is a clear case of enthusiastic non-verbal consent), I do think that Young and others are on to something when they criticize this law for trying to codify sexual relations.

I’m simply not convinced that sexual relationships are “easy” or that “everyone understands non-verbal cues” as some of the defenders of the law have stated. I wish that was the case, but plenty of people have trouble with reading people’s facial expressions, body movements, social norms and general cues that are non-verbal. The issue of drinking and drugs, which can be agreed to ahead of time, in addition to sex makes things a bit more puzzling. Trying to force one single model on everyone in all sexual relationships, generally sounds like a bad idea.

Young and other critics have noted that whether this law actually sends people to prison (it doesn’t and can’t) or not, this still sets the precedent that the state can get involved in the sexual relations of people. Which, as we know from laws involving marriage or prostitution getting the state involved is always a good idea to get power-hungry law-makers to extend state power even more in the future.

But one of the biggest problems is a problem that blogger Fredrik de Boer points out,

…I feel strongly that explicit consent laws actually undercut the absolute ownership by the individual over her or his own sexual practice.

One of the most important parts of the feminist project is insisting that women own their own bodies. This has application to abortion, where the pro-life movement seeks to take physical control of women’s bodies away from them. And it has application to rape.

The insistence of those who work against rape is that only the individual has the right to define appropriate and wanted sexual practice. With the informed consent of all adult parties, no sexual practice is illegitimate. Without that consent, no sexual practice is permissible.

This is a humane, moral standard that has the benefit of simplicity in application and clarity in responsibility. But it stems first and foremost from the recognition of individual ownership. To define the exact methods through which individuals can request and give consent takes away that control and turns it over to the state, or even more ludicrously, to a dean or some academic grievance board. We should be expanding the individual’s control over their own sexual practice, not lessening it.

To the extent that this law puts more power into the hands of the state to define what makes or breaks sexual relationships, anarchists should oppose it. But to the extent that this cultural idea, as a cultural norm, gains traction and helps build beautiful, harmonious and sexually fulfilling relationships, then anarchists should advocate it — but advocate it decoupled from the state.

We don’t need the government in our bedrooms any more than it is, whether direct or indirect.

The question of our sexual autonomy is old. We demand our bodies — now.