By Cathy Young
The idea that sexual consent requires an explicit "yes"--one step beyond "no means no"--has long been the dogma of feminist anti-rape activists. In the early 1990s, when Ohio-based Antioch College incorporated this principle into its code of student conduct to mandate verbal consent to each new level of intimacy, it was widely ridiculed as political correctness gone mad. Yet policies similar to Antioch's, though not as detailed, were even then spreading to college campuses across the country. In 1994, a senior at Pomona College in California was nearly prevented from getting his diploma because of a sexual assault complaint brought with a two-and-a-half year delay, in which the alleged victim admitted that she never said no but claimed that she never gave consent, which the college policy defined as "clear, explicit agreement to engage in a specific activity."
Now, for the first time, this standard may be codified into law--not criminal law (as yet), but law regulating sexual assault investigations on college campuses. SB-967, a bill proposed in the California state legislature in response to the "crisis" of campus rape, would establish "affirmative consent" as the standard for disciplinary proceedings for sexual assault complaints. The bill allows that "willingness to participate" in sexual activity can be conveyed through "clear, unambiguous actions" as well as words, but also cautions that "relying solely on nonverbal communication can lead to misunderstanding."
Meanwhile, as the New York Times reports in its Education Life section on February 7, there is a new wave of student activism--coordinated through the social media--advocating for "consensual sex." One might think that consensual sex would need no advocacy; but, of course, this is not just consent in the traditional sense. The goal is to encourage students to "ask first and ask often before engaging in sexual activity." The movement seeks to "make consent cool" through such gimmicks as giveaways of condoms with pro-consent slogans on the wrappers ("ask before unwrapping") and a website featuring a spoof line of Victoria's Secret lingerie with such mottoes as "consent is sexy" and "ask first.
The "consent movement's" party line, parroted by the activists quoted in the Times, is that obtaining explicit consent can "enhance the sexual experience rather than stifle it" by promoting communication. "Consent is necessary, and it's fun," Sayda Morales, co-founder of a group called All Students for Consent at Whitman College in Walla Walla, Washington, tells student audiences. Of course, claims that negotiated consent is "sexy" and "fun" are somewhat undercut by the fact that it's being promoted through thinly veiled intimidation. In a list of "Ten Reasons to Obtain Verbal Consent to Sex," veteran feminist educator Bernice Sandler quickly moves from the dubious assertion that "many partners find it sexy to be asked, as sex progresses, if it's okay" to "Because you won't be accused of rape" and "Because you won't go to jail or be expelled."
What the affirmative consent standard requires is not just communication about sex; it's constant awareness that you may be raping your partner if you don't read the signals properly and if you fail to notice that there's some ambiguity to be cleared up. (According to the California bill, "if there is confusion as to whether a person has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion can be clearly resolved.") Whether anyone could feel particularly "sexy" under such conditions seems doubtful; eternal vigilance may be the price of liberty, but it's hardly a ticket to good sex.
Some feminists, including Naomi Wolf in the 1993 book, Fire With Fire, have argued that the affirmative consent standard subverts traditional norms of female sexual passivity, since it requires women to openly express a desire to have sex. But, actually, it's far more likely say that such a standard strips women of agency in a way that traditional norms never did. Under those norms, the man initiates and escalates sexual activity while the woman acts as "gatekeeper," setting the limits (or choosing not to set them). Under the "ask first" policy--which generally rests on the unspoken presumption that the man will do the asking--much of the responsibility for setting the boundaries is transferred to the man: he must now take the added initiative of checking whether the woman wants him to stop, in case she lacks the assertiveness to say no without being asked. This, apparently, is feminism.
Whether the affirmative consent standard will be enough to satisfy the activists--or preclude accusations of nonconsensual sex--is far from certain. A list of clarifications as to what consent is and isn't, which comes from educational posters used on college campuses, stipulates that "If they don't feel free to say 'no,' it's not consent," which means that at least in theory explicit verbal consent could always be retroactively revoked. And a new campus campaign in Canada warns that "if it's not loud and clear, it's not consent--it's sexual assault," using posters with the words "fine," "okay," and "sure" in tiny print to convey the idea that someone who expresses consent in a "muted" or "uncertain" way is not really consenting. Perhaps eventually, someone will calculate the appropriate decibel level at which "Yes" becomes valid.
It's bad enough when these rules are imposed by colleges and universities; with the California bill, we now have a state legislature effectively mandating how people--at least, college students--should behave during sex. (If you prefer what one sexual assault counselor disapprovingly calls "the blind give-and-take of sexual negotiations," you're out of luck.) Whatever happened to getting the government out of the bedroom?
Cathy Young, a columnist for Newsday, is a regular contributor to Real Clear Politics and Reason.