Laws governing sexual conduct are about to change for the worse. With 20 percent of female students reporting sexual-assault incidents, California's State Senate recently passed legislation to target the crime on campuses. Bill 967, which passed unanimously and is also known as the "yes means yes" law, stipulates that colleges will receive state funding only if they adopt certain policies regarding sexual assault, chief among them being “an affirmative consent standard.” For sexual activity to be lawful, "affirmative, conscious, and voluntary agreement" must be given. The bill goes on to assert that "Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time."

In other words, in order for sex to be lawful, both parties must acknowledge verbally and continuously that they are indeed in the mood for love (the word “verbal” was removed from the bill, but it seems impossible to satisfy the conditions nonverbally). If no used to mean no, under Bill 967, an absence of yes now means no, too.

This recent legislation reflects a growing trend to criticize our current sexual culture as one which condones sexual assault, a crisis often referred to as “rape culture.” Some of the criticism is valid, but, by and large, this new discourse renders women as either receivers of, or victims in, the phallic pursuit of sexual satisfaction. These measures and the discourse which invigorates them ratify a double standard into law and have the potential to pervert justice.

Many of Bill 967’s standards are important, for example, the insistence that "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," or the bill’s canny note that "Intoxication and sleep may not be taken as signals of consent." Indeed.

But the bill is more problematic than powerful. Even beyond the problems of implementation (you still have the same he said/she said problem), the bill formalizes troubling arguments about gender and consent. For example, by redefining rape as any act that happens without “affirmative consent,” it dangerously expands the category of sexual assault to include consensual acts that take place in the absence of “affirmative agreement.” The new bill decouples consent from desire—you must speak your desire for it to count. The bill thereby determines by fiat that, should a complaint arise, the conditions for expressing desire were not coherent enough to imply consent. In this way, it is similar to the laws criminalizing statutory rape: Whether or not a 15-year-old girl or boy wanted to have sex with an 18 year old is immaterial; she or he ise not deemed old enough for consent to matter. While a child’s desire may be immaterial to his or her ability to consent, it is patronizing, infantilizing, and even dehumanizing to apply this metric to college-aged women.