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'Affirmative Consent' Is Bad for Women

California's new campus rape law only codifies a troubling double standard

Chase Carter

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.

Furthermore, it’s a long way from saying that the fact of an existing relationship does not imply consent, to saying that even within an existing relationship, verbal consent must be given. Must two married college students verbally consent to each other? The law stipulates the rather awkward condition that affirmative consent must be “ongoing throughout a sexual activity.” Must a couple stop at every stage to reaffirm their consent?

But there is a larger problem at stake in Bill 967. It is an argument of definition: A failure to procure “affirmative agreement” means that sexual assault has taken place. If that is the case, absent such affirmative signifiers, how exactly do you know whom to arrest? Let’s say the woman brings a complaint; hasn’t she also technically raped her male partner, according to the new bill? Of course not, critics will argue. His consent was visible; sex couldn’t have happened without his consent, they will say. But here lies the crux: while male desire is deemed equivalent to “affirmative consent," female desire is not. A double standard is actually ratified into law whereby the phallus represents true, unmediated desire, while female desire must be interpolated through words. While the law must protect women from the inequality of force men have at their disposal, what is the utility of demanding that women require an extra level of mediation to signal desire, under conditions where no imbalance exists? 

Herein we find one of the most outrageous part of the bill: Its assumption of men as the initiators of sex acts, and women as their recipients. This is certainly how the New York Times views the bill, in two separate op-eds. In discussing its usefulness, the Times states, “The new standard won’t convince young men intent on getting their way—a vast majority of assailants are men—to back down, especially if alcohol is in the picture, as it often is. It could, however, improve how colleges handle accusations.” But data suggests that most college rapes are perpetrated by a small minority of students, rather than a vast group of assailants. In response to the same task force that instigated Bill 967, RAINN (the Rape, Abuse, and Incest National Network) sent a letter to the White House Task Force to Protect Students from Sexual Assault, in which they found that a mere 3 percent of men committed over 90 percent of college rapes (there is no reliable research on female college perpetrators). And yet California’s law governs every college student’s encounters. A different method entirely is required to deal with an epidemic of rapes perpetrated by a small percentage of repeat rapists than would be required to treat an epidemic of rapists. 

In the Times’ second op-ed on the subject, Gloria Steinem and Michael Kimmel predicted that the bill is “bound to raise howls of protest from opponents of women’s equality.” Next they quote a howler who they seem to believe is at least a potential rapist. “Of course some guys on campus were against it, in an honest way,” Steinen and Kimmel write, and then quote a student quoted in a 1993 article: “’If I have to ask those questions, I won’t get what I want,’ blurted out one young man to a reporter. Bingo,” Steinem and Kimmel conclude righteously.

There is something decidedly bad for women in turning this gray zone into a black one, both as far as feminism and equality is concerned, as well as in terms of the reality of sex. Much of what we call courtship—and the pleasures therein—revolves around sending, reading, interpreting, and changing these signals. Surely a misunderstanding should be judged under the law differently than an outright desire to harm. Surely we are all guilty of trying to convince people to have sex with us. Are we rapists? Surely, we have all enjoyed a little drunken cavorting. According to Bill 967, if we did this while college students in California, we are sexual assailants. The fact that no one accused us of rape does not mitigate the bill’s claim that sexual assault was perpetrated. 

In RAINN’s letter to the White House Task Force, the organization argued in favor of changing the discourse surrounding “rape culture”: “In the last few years, there has been an unfortunate trend towards blaming ‘rape culture’ for the extensive problem of sexual violence on campuses. While it is helpful to point out the systemic barriers to addressing the problem, it is important to not lose sight of a simple fact: Rape is caused not by cultural factors but by the conscious decisions, of a small percentage of the community, to commit a violent crime. While that may seem an obvious point, it has tended to get lost in recent debates.” 

RAINN was accused of succumbing to rape culture in making this argument. Supporters of Bill 967 will probably also argue that if the bill saves one woman from rape, or results in the successful prosecution of even one rapist, it will be worth the price paid. But this logic would never work in another legal context, and a legal system that works is one that distinguishes between mistakes and the intentional infliction of harm. It’s a broken legal system that calls all these things wrong, and leaves those trying to achieve justice to deal with the mess. The law proposes to declare a large swatch of normal activity criminal (drinking before sex, reading/sending signs instead of verbalizing request/consent). No legal system should be able to justify such actions without some proof of benefit.

Solving the problem of college campus sexual assault is a crucial imperative facing our society, but over-legislating sex is a path destined for failure.