I’ve been reading everything I can find about California’s new affirmative consent law, and I still can’t quite figure out how it’s going to work in practice. The law, which Governor Jerry Brown signed yesterday, requires colleges in the state to adopt what’s sometimes called the “yes means yes” standard for sexual assault, meaning that a person’s silence or passivity in the face of sexual advances cannot be taken as consent.
As the law’s supporters describe it, it’s simple common sense, ensuring that rapists won’t be exonerated because their victims were too intoxicated, or immobilized with fear or shame, to articulately refuse. As its opponents see it, it’s a retread of the infamous Antioch College rules from the 1990s, requiring awkward and explicit agreement for every touch, every time, and thus branding a great deal of ordinary consensual sex as assault.
Reading the text of the law doesn’t clarify matters. It’s true that, contrary to some reports, it makes allowances for non-verbal assent. “You may have heard of this bill as the one that would require students to draft up a written sex contract before bed or constantly proclaim ‘yes, yes, yes!’ at every slight readjustment, thereby practically redefining most sex as rape,” wrote Slate’s Amanda Hess, before explaining that this is not in fact the case. But the law is vague about what legitimate non-verbal consent—the kind that, I’d wager, governs most sexual relationships—might look like.
“’Affirmative consent’ means affirmative, conscious, and voluntary agreement to engage in sexual activity,” the law says. “It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. 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. 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.”
Now, most of us know what this kind of consent looks like in practice, but as a legal standard, it’s hard to imagine how it would be implemented. Do moans count as consent? How about a nod, or a smile, or meaningful eye contact? If a woman performs oral sex on a man without asking him first, and if he simply lies back and lets her, has she, by the law’s definition, assaulted him?