This cover story from New York magazine on campus activists working against sexual assault is deep and challenging, and you should read it in full. I want to talk a little bit about the burgeoning movement for explicit consent laws. These laws change the typical standard from “no means no” to “only yes means yes.” As the article puts it, “Students are now required to have ‘unambiguous communication and mutual agreement’—that’s verbal consent—before sexual acts, or risk consequences.” The standard, in other words, is that each partner must ask the other, explicitly and orally, before any particular sex act takes place. While I understand the great urge to work proactively against rape, given its moral and emotional horror, I think that these policies and laws can actually undermine attempts to address sexual assault, and worse, take sexual ownership of the self away from the individual.
First, I think that it’s a mistake to create different standards of consent for college students. The potential unforeseen consequences scare me, and besides, a central aspect of the fight against sexual assault is to insist that rape is rape. I think it sends a retrograde message to suggest that there is a different standard that is applied only to college students. I would argue that a clear takeaway from the New York piece is that the establishment of this entire separate legal system for campus sexual assaults, while undertaken with good intentions, has added a layer of complexity and lack of accountability that has backfired badly. Campus-only affirmative consent laws seem to deepen this problem.
Second, I am unclear as to which problem this is supposed to solve. Rapists are those who engage in sexual behaviors against others who have not consented to those behaviors. Whether the standard is “no means no” or “only yes means yes,” rapists will violate that standard, because they are rapists. Perhaps such policies will make it easier to prosecute cases against offenders, but again– it is as easy for someone to claim after the fact that he asked for and received a yes as it is to claim after the fact that the other person didn’t say no. These policies seem only to solve problems under the assumption that many rapes are so-called “gray rapes,” and yet anti-rape activists have long worked to insist that there is no such thing, or that such situations are quite rare.
Third, I think it is almost always a mistake to institute policies or laws that we know will be ignored by many or most people. When I have talked through these ideas with supporters, I have often been surprised to find that even they doubt that most college students will obey the policy. I think it is sensible, given human nature and the nature of college, to doubt that all college students will give and expect explicit verbal consent before each sexual act. What percentage of 20 year olds will actually engage in such a policy? My guess is that it would not be high even after education and public service campaigns. Establishing rules we know will be broken does not help us oppose the behaviors we are fighting against; I suspect, in fact, it will do the opposite. These problems are particularly clear for those who are in long-term romantic and sexual relationships. When I point this out, I often hear that such people should be exempt from affirmative consent rules. But creating exemptions preemptively is a poor way to start instituting a new social norm. Again: the insistence has been, correctly, that rape is rape, and that people can and do rape their partners in a committed relationship. We can’t create a new norm and allow for exceptions that perpetuate misguided notions about who can or should be exempt from standards of consent.
I could be wrong, but my reading of most people’s sexual preferences is that they are not interested in asking for or expressing explicit sexual consent. Rather, they are comfortable with the conventional standard that no means no. If two people engage in consensual, pleasurable sexual acts without voicing explicit consent, who is guilty, and of what? People have a tendency to say “no one would ever be arrested in such an instance.” But then in what sense are we building a norm or legal precedent at all? Saying that people should not fear the consequences of failing to follow a legal or social norm directly undercuts the effort to build that norm in the first place. It seems to me to open up a moral and legal can of worms, one that could easily lead to all sorts of ugly consequences.
Fourth, and most importantly: I feel strongly that explicit consent laws actually undercut the absolute ownership by the individual over her or his own sexual practice. One of the most important parts of the feminist project is insisting that women own their own bodies. This has application to abortion, where the pro-life movement seeks to take physical control of women’s bodies away from them. And it has application to rape. The insistence of those who work against rape is that only the individual has the right to define appropriate and wanted sexual practice. With the informed consent of all adult parties, no sexual practice is illegitimate. Without that consent, no sexual practice is permissible. This is a humane, moral standard that has the benefit of simplicity in application and clarity in responsibility. But it stems first and foremost from the recognition of individual ownership. To define the exact methods through which individuals can request and give consent takes away that control and turns it over to the state, or even more ludicrously, to a dean or some academic grievance board. We should be expanding the individual’s control over their own sexual practice, not lessening it. And we should maintain the simplest standard that there is: that if a person rejects a sexual advance, or is in such an incapacitated state that they cannot rejected that advance, or is under the power of the other party to the extent that they feel compelled to consent, sexual contact cannot morally or legally take place.
“No means no” works. And the fact that many men continue to force sexual acts after they have been told no does not mean that the standard is broken. It means that they are broken. We don’t need to change the standards of consent. We need to teach men not to rape and to punish those who do.
Given the horrors of sexual assault, the desire to do something is powerful and totally understandable. But the establishment of explicit consent policies strikes me as a perfect example of the flawed thinking of “we need to do something, this is something, therefore we need to do this.” I am surprised that some passionate activists have become attracted to this way of thinking, as to me it seems like a corporate, self-protective policy, one designed to create the appearance of progress rather than progress itself and to legally and politically protect powerful entities.
I could easily be wrong about this, and I’m willing to listen. But I hope that we can pause and recognize that there are frequently unforeseen consequences of even the most well-meaning policy. More, I hope we recognize that in the final analysis, what must change is not policy but behavior for rape to end. There are policy steps that we can take to help victims while preserving due process and rights of the accused. Ultimately, though, behavior must change, through education, activism, and demand.