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 firstname.lastname@example.org.