This column is part of a point counter-point on California’s affirmative-consent law. Read the counter-point here.

On Sept. 28, California enacted Senate Bill 967, becoming the first state to pass a so-called “yes-means-yes” or “affirmative consent” law.

That sounds nice. But what does it actually mean? Under California law, rape is nonconsensual sex. During a romantic or sexual interaction, the default assumption is now that nothing short of explicit, verbal consent counts as consent. “Lack of protest or resistance does not mean consent,” write the authors of the bill, “nor does silence mean consent.” Every college in California must now tailor its regulations to comply with this law.

Before we further dive into the argument, allow me to clarify: Acts of rape and sexual assault clearly do happen, and one case of rape or sexual assault is a case too many. These cases are particularly prevalent on our college campuses. This is not — and should not be — a partisan issue. Critics of SB 967 ought not to be automatically labeled “victim-blamers” or relegated to a Todd Akin level of infamy. While the American left and the right disagree on many topics, there is an overwhelming consensus that sexual assault is reprehensible and that the high rates of these acts in our society are completely unacceptable.

So what’s the solution? When it comes to this question, legislators have become inexplicably lazy. Rather than attack the sources of the problem or crack down on perpetrators of sexual assault, legislators across the country have opted to uncontrollably expand the definition of rape and sexual assault.

Yalies encounter these definitions the moment we arrive in New Haven. During freshman orientation, the Yale administration does an excellent job of drilling into students the language of consent. In mandatory gatherings with our deans, meetings with our freshman counselors and “froyo workshops” with the Communication and Consent Educators, we are reminded that we are unable to give consent if we are incapacitated due to drugs or alcohol.

But if we were to actually stop for a moment and reflect, we would realize this is a ridiculously low bar. One clear problem is the ambiguity of the word “incapacitated.” This can mean anything from a few legal “drinks” to non-responsiveness. If two people get drunk and have sex, they could both conceivably be accused of rape.

It is this definition of consent that in part gives rise to President Obama’s preposterous statistic that “one in five women on college campuses has been sexually assaulted.” This misleading statistic is based on a 2007 survey that looked at only two college campuses, relied on a low response rate
and categorized as rape any “intimate encounters while intoxicated.”

This new piece of legislation takes it to a new level. Did you kiss your date goodnight without obtaining verbal consent? That’s assault. Did you have sex with your significant other without explicitly asking for permission every step along the way? Seems that’s rape.

The partisan proponents of the California bill aren’t even trying to hide its preposterous implications. Well-known liberal columnist Ezra Klein writes, “the ‘Yes Means Yes’ Law is terrible, but necessary” and that the law “needs to create a world where men are afraid.” With this law, California legislators have effectively declared war on the presumption of innocence put forward in the Universal Declaration of Human Rights. Whereas previously, sex was consensual unless one party explicitly protested, this new law posits that any romantic interaction is nonconsensual unless explicit verbal consent is provided.

Worst of all, SB 967 fails to address the real sources of rape and sexual assault in modern American society. As we learned in our “froyo workshops,” we actually don’t struggle to understand others’ body language, coded diction or tone. What do we struggle with, then? We struggle to care. We struggle to treat others with the respect they deserve. Instead, we see others as objects — relegating them to tools we use to achieve our own selfish ends.

We know what constitutes an appropriate sexual interaction — people ought to be treated as ends in themselves, rather than as means for personal gain. California’s new “affirmative consent” policy implies that the only requirement for respectful sexual action is a verbal green light. It promotes a cheap façade of choice, rather than forcing students to rethink the motives that drive their sexual interactions.

This ridiculous requirement of explicit, verbal consent lumps together the experiences of those who are forcibly raped with those who have drunk sex or those who simply have sex without awkwardly verbally consenting every couple minutes. It trivializes the experiences of victims of rape and sexual assault. We need to address this epidemic, but yes-means-yes legislation isn’t the solution.

Amalia Halikias is a senior in Silliman College. Contact her at amalia.halikias@yale.edu.

  • kevin24

    Under explicit verbal consent laws basically everybody is, or at some time in their life has been, a rapist.

  • brando55

    “We know what constitutes an appropriate sexual interaction — people ought to be treated as ends in themselves, rather than as means for personal gain.”

    I have no idea what that means, but it sounds like another unrealistic standard that will always, 100% of the time, be violated to some extent, by an even larger margin in the case of animalistic behavior. You could propose it as “ideal sexual behavior” but normalizing it would require taking guidance from the Pope. Everybody would rather have fun

    • anubis

      One would presume it’s the second formulation of the categorical imperative, from Immanuel Kant’s GROUNDWORK OF THE METAPHYSICS OF MORALS (1785). Hardly obvious that all people “know” this standard, even among Yalies.

    • Boola

      this is, like, LITERALLY the point of the froyo exercises – we CAN tell what people want. we CAN read others’ body language. once we know that, we have no excuse to behave that way/pressure/assault.

  • theantiyale

    How about cellphone-videotaping the consent before the activity, during the activity and after the activity and posting the consent on Twitter?
    In a world where “Entertainment Tonight” masquerades as the evening news, why not create “Litigation Tonight”.

  • anubis

    “oh but what if TWOOOO drunk people have sex did they both rape each other?!1111” is the derpiest possible objection to enacting real policy changes against sexual assault.

    • ModeratesPlease

      ‘Affirmative Consent Law’ doesn’t enact real policy changes against anything; it just disturbingly widens the net… to include almost everyone who has ever had sex as a rapist. If we actually want to enact policy against sexual assault, we should change penalties for sexual assault – not target innocent people.

    • Boola

      … sure it is. we don’t think that that’s rape, do we?

  • Ece FNW

    OH GOOD I REALLY MISSED THE PHRASE “FORCIBLY RAPED” THANK GOD IT’S BACK

    • ModeratesPlease

      So, Ece, you don’t think there’s a qualitative difference at all between planning to rape someone and accidentally having sex with someone who is ‘too drunk’?

      Personally, I’ve really missed obnoxious, extremist posts in all caps. Thank God for our pricy educations, which privilege us to post such wisdom and promote discourse.

    • credo

      I wonder if people would get mad when I claim “no one should have to experience horrific rape” because that somehow implies rape is usually not horrific

  • yalemarxist

    “We struggle to treat others with the respect they deserve. Instead, we see others as objects — relegating them to tools we use to achieve our own selfish ends.”

    If Ms. Halikias hopes that we see people as ends, rather than as objects, she should oppose the brutal capitalist system of exploitation in which workers’ bodies are policed and controlled. Objectification is a product of capitalism.

    • anubis

      ^ actually doe. This here YDN troll knows what’s up.

  • Saybrugian Who Wants Answers

    Where does the word blackout appear in the law? It doesn’t; it’s up to us to decipher WHEN someone is incapacitated due to drugs and/or alcohol

    • http://www.presstitutes.org/ Mike Conrad

      Once my girlfriend claimed the whole previous evening was a blackout, and that she remembered nothing. Fortunately I was too drunk myself that night to have done anything. But I didn’t have trouble remembering.

  • ModeratesPlease

    Outraged folks are hilarious. This piece is SO middle-of-the-road.

  • Boola

    There’s definitely a grey area where you can’t give consent, but aren’t blackout. Also, knowing whether you were blackout is a retrospective thing, and it’s pretty hard for other inebriated people to tell the point at which their friends/s.o’s become blackout

  • mopo

    Nowhere in the bill does it explicitly state that consent needs to be verbal:
    “‘Affirmative consent’ means affirmative, conscious, and voluntary
    agreement to engage in sexual activity.” Affirmative consent can mean an explicit verbal “yes” to sexual activity but it can also be the active mutual participation of all parties involved in the sexual activity. Moreover, “drunk sex” is not rape…there is a difference between waking up feeling violated and waking up regretting the night before–the difference is the presence of consent.

    • flopsy

      “there is a difference between waking up feeling violated and waking up regretting the night before–the difference is the presence of consent.”

      The (I believe valid) criticism of ‘yes means yes’ laws is that under them, the difference is whether the regretful decide to exploit overly broad definitions of sexual assault and charge their drunken partners as willful assailants

    • river_tam

      > Moreover, “drunk sex” is not rape…there is a difference between waking up feeling violated and waking up regretting the night before–the difference is the presence of consent.

      If you think that affirmative consent the night before guarantees that you don’t wake up feeling violated and regretting it, you haven’t talked to enough college-age women about their experiences with sex.

      The problem at Yale is not that they don’t want it the night before (or even that they’re too intoxicated to decide), but that they realize they didn’t want it the morning after. People change their minds.

      Sex is much more emotionally and psychologically than simply playing tennis or arm-wrestling. But Yale has promoted a culture where students think of it as cavalierly, and then wake up the next morning in a post-coital phase of disgust and regret. I even had a friend who told a boy she met at Toad’s that he didn’t have to use a condom. She’d only had two drinks the entire evening. The next morning I took her crying to get emergency contraception and then again later to get an STD test.

      You know how to prevent these problems? Stop creating an environment of these expectations. Stop promoting casual hook-ups. Stop giving sex talks to freshmen that presuppose that they’re going to be sleeping with the first person they meet at a party. Stop promoting students “getting lucky”. Stop hanging bags of condoms at the front of every door as a constant reminder that you’d better be having sex or else you’re missing out.

      • xfxjuice

        Aren’t you usually the first person to promote personal responsibility, yet when it comes to this friend of yours, you place all of the blame on the “system.”

        ” I even had a friend who told a boy she met at Toad’s that he didn’t have to use a condom. She’d only had two drinks the entire evening.”

        So your point is that your friend does not need to be blackout or even drunk to make poor choices. Got it.

        “Stop hanging bags of condoms at the front of every door as a constant reminder that you’d better be having sex or else you’re missing out.”

        So more people get to walk their crying female friends to get contraception and STD tests! Yay!

        Your logic is so out of whack.

  • flopsy

    I find that there’s nothing quite as arousing as having my partners sign a written contract when we go back to my place. And you should SEE how spicy it gets when we bring our fro-cos, deans, reps from the yale women’s center and outside counsel into the mix

    • http://www.presstitutes.org/ Mike Conrad

      Stop, you’re getting me all hotted up.

  • Gratis Ptaka

    False rape, false DV, false harassment, no-fault divorce, and soon, the redefinition of cohabitation in terms of alimony and asset division. Any man that gives any women any level of power and control over their lives is a moron.