Beyond “No Means No”
(Excerpts from an article by Jessica Valenti, in theguardian.com)
The biggest paradigm shift on sexual consent in decades may just now be emerging in California, where “yes means yes” – a model for reform … – could soon become law.
Late last week, the first state bill to require colleges to adopt an “affirmative consent” model in their sexual assault policies passed the California senate unanimously. The legislation, which is headed to Governor Jerry Brown’s desk for approval by the end of this month (his office declined to comment), effectively requires the presence of a “yes” rather than the absence of a “no” – or else withholds funding from the nation’s largest state school system.
The legislation additionally clarifies that affirmative consent means both parties must be awake, conscious, and not incapacitated from alcohol or drugs – and that past sexual encounters or a romantic relationship do not imply consent. The California bill also, importantly, specifies that “lack of protest or resistance does not mean consent, nor does silence mean consent.”
It seems like a no-brainer to only have sex with conscious and enthusiastic partners, but detractors say the standard “micromanages” sexuality. The truth is that a “yes means yes” policy “helps to create a shared responsibility, instead of the responsibility falling on women to say ‘no,’” says Tracey Vitchers, chair of the board at Safer (Students Active for Ending Rape.) Anti-violence activists are clearly excited about the bill, which – if all goes well – could be adopted by more states with large public university systems … .
The California model has “created an important conversation about consent in the media and public, and I think with affirmative consent, more students will be talking about it as well,” [says Sofie Karasek, co-founder of End Rape on Campus].
Indeed, a lot of students – male students, included – already are. Gray Williams, a senior at University of North Carolina at Greensboro, says he likes the “yes means yes” standard. “It’s not that big of a deal, and I appreciate having an unambiguous ‘yes’ or ‘no’ instead of having to read her body language,” he told me. George Warren, a recent graduate of Vanderbilt University, thinks some young men might be skeptical, but he insists part of the problem is that the “discourse around consent in day-to-day conversation is so unsophisticated.”
And this is what makes the legislation so important for colleges: mandating “yes means yes” in sexual assault policy puts the onus on colleges to give comprehensive consent education. If students are to abide by that standard, they need to know what it means.
So California could lead the way in redefining how we think about sexual consent. As promising as this overdue measure may be, state legislatures and university administrators alike need to make sure they’re being as thorough as possible in this moment when real reform, for once, doesn’t seem impossible. The legislation doesn’t clearly specify whether affirmative consent means verbal or nonverbal communication. Do students need to say “yes”? Or is clear body language sufficient?
Should Gov. Brown sign “yes means yes” into law, I agree with Slate writer Amanda Hess, who believes the standard going forward should itself be more sophisticated and include nonverbal cues – not just because they present a more realistic vision of how we experience sex, but because we need to talk about body language that can mean “no” as well:
“If we can admit that enthusiastic consent is often communicated in body language or knowing looks, then we must also accept that the lack of consent doesn’t always manifest itself in a shouted ‘no’ or ‘stop,’ either. It shouldn’t be the sole responsibility of the uninterested party to speak up.”