On paper, the new California law mandating an affirmative consent standard for sex between students in the state university system is a feminist dream come true: yes means—at long last—yes. True, it’s a bit hard to imagine how it will play out in practice, even bearing in mind that consent to each sexual activity need not be verbal. I can see asking for a lot of yeses, or moans of pleasure, or whatever, as you progress from kissing to et cetera with a new partner, but months into a relationship? Is there never a point at which you can take some things for granted and just get on with it?
Still, it’s not as if the current understanding of consent works so well. The new law, after all, comes on the heels of a number of much-publicized cases: thirty-eight current and former students at Occidental College have filed federal complaints against the administration for mishandling charges of sexual assault, followed by groups from Berkeley and USC, as well as schools in other parts of the country, like Swarthmore and Dartmouth. A federal task force looking into sexual assault on campus under Title IX has wonderfully concentrated the minds of administrators and legislators. New York’s governor has just declared affirmative consent at the state university system.
Given how poorly it’s worked, maybe we needn’t cling to the “no means no” standard, under which a woman is presumed ready for action even if she lies there like lox with tears running down her cheeks, too frozen or frightened or trapped by lifelong habits of demureness to utter the magic word. Why should the burden be only on her to set the limits, with her availability as the default position, rather than on both partners to make sure the encounter is mutually desired? (And yes, although heterosexual pairing is the most common, this applies to all sexes and genders.)
In real life, though, here’s the difference the new standard will make: not much. For one thing, as many have pointed out, it assumes the problem is miscommunication—“I thought you liked it,” as the creepy frotteur said to me on the subway long ago, just before I stomped hard on his foot on my way out the door. But far more common than simple confusion is the situation in which a woman’s wishes are disregarded or in which an outright predator has made sure his target really can’t say no—she’s too drunk, or asleep; she’s in his car with no way to get home. The reason 90 percent of campus rapes are committed by repeat offenders, and why members of fraternities are three times as likely to be perpetrators, is not that frat boys are particularly liable to misunderstand women. It’s that they feel more entitled to sex and more protected from punishment. Moving to an affirmative consent standard won’t stop these exploitative men; instead of arguing that the victim didn’t say no, they’ll claim she said yes, she moaned with pleasure, she moved against them in a sexual way… It will still be “he said, she said.”