Affirmative consent has never been more popular.
Last month, California Gov. Jerry Brown (D) signed a new law requiring colleges in his state to adopt a “yes means yes” standard for defining consent in the campus adjudication process. Now, other states are starting to follow in his footsteps. In an announcement last week, New York Gov. Andrew Cuomo (D) told schools in the SUNY system to adopt the same definition of consent. And New Hampshire lawmakers just introduced a bill modeled directly on California’s new legislation.
The state legislation comes on top of the activism that’s already happening on college campuses across the country. This week, Harvard students launched a campaign asking their school administrators to implement a “yes means yes” standard.
Despite the recent convergence on this issue, affirmative consent — the idea that partners need to obtain explicit consent before proceeding with a sexual encounter, rather than assuming it’s okay unless the other person says “no” — isn’t actually a new concept. This type of standard was infamously introduced at Antoich College in 1991, and was met with considerable derision from outside observers. Antioch’s consent policy ended up being mocked in an episode of Saturday Night Live. “May I elevate the level of sexual intimacy by feeling your buttocks?” one of the SNL skit’s actors asked, insinuating that affirmative consent is unrealistic and unsexy in practice.
More than 20 years later, affirmative consent policies are getting somewhat of a different reception in some circles. Feminist activists Jessica Valenti and Jaclyn Friedman, who wrote a 2008 essay collection named Yes Means Yes that’s often credited with helping to popularize affirmative consent, have noticed this shift firsthand. They’ve watched the ideas they wrote about in that book become enshrined into law.
“I think the public awareness and understanding of affirmative consent is skyrocketing since the California legislation was introduced,” Friedman said in an interview with ThinkProgress. “It is a little surreal, honestly. I keep looking at the headlines and thinking — is this really happening?”
“Every time I hear about a new piece of legislation, I just start crying. It’s very emotional!” Valenti told ThinkProgress. “To see something that you were so directly involved in take off in such a meaningful and widespread way is really incredible.”
Both Friedman and Valenti credit that shift to a generation of young activists and grassroots anti-violence organizations who have been working to transform society’s approach to sexuality. Despite the negative national reaction to Antioch College, students continued pushing to hone their institutions’ definitions of consent over the past several years. And they’ve gotten results. California may have passed the first statewide law on the subject, but a “yes means yes” policy was already in place at schools ranging from Colgate University to Yale University to the University of Pennsylvania even before that legislation was approved.
“Of course, the legislation is really exciting — but to me, it’s really about the fact that the students have adopted this so much and are the ones really leading the charge,” Valenti noted. “It’s already become a standard in so many ways. The legislation is sort of the last piece.”
But not everyone is so pleased about proliferation of this new standard of consent. The national attention to California’s law has inspired a lot of criticism about why the measure is a dangerous overreach into college students’ bedrooms. Skeptics say that it will essentially turn every student into a rapist, resulting in a much higher rate of false sexual assault convictions.
That’s a fundamental misunderstanding of how these policies work, according the Yes Means Yes authors. First of all, defining affirmative consent in student codes of conduct doesn’t have any bearing on the legal system. Creating these new standards won’t make any sex acts illegal or result in criminal convictions. Instead, it’s a way to send a message about what type of behavior is acceptable on college campuses, where students often get punished for things outside the realm of criminal courts of law — like cheating on a test, for instance.
And the policy doesn’t necessarily change the way that the vast majority of people are already interacting with each other. When it comes to sexual assault cases, a “yes means yes” standard just ensures that the line of questioning is centered on the perpetrator’s behavior (did you get consent?) rather than on the victim’s behavior (did you withdraw your consent?). Outside of the adjudication process, however, it isn’t actually a dramatic departure from the way that people have sex.
“Anyone who has had sex knows what a yes is,” Valenti pointed out. “Grabbing someone closer and moaning, that’s a yes. Lying there and doing nothing with a blank look at your face, that’s a no. I think that we all know that. We have a certain amount of sexual literacy.”
“It’s being sold as this legalistic thing, where you have to get a signature for everything at each step — and it’s just not like that,” Friedman said. “It’s a basic human standard. If you can’t show up for your partner, if you can’t stay present during sex and make sure that your partner is actively into what’s happening between you, then you don’t have any business having sex with another human being.”
Despite what they describe as a “really fantastic reception” for affirmative consent recently, Valenti and Friedman fully expect some accompanying backlash. There was some push back when their book was first published, too. Valenti pointed out that this is how the shifts on these issues work; many people were initially critical of the idea that spousal rape or acquaintance rape should be considered a sexual assault.
But they’re optimistic about a future in which affirmative consent becomes even more widely accepted. Friedman does a lot of speaking on college campuses, where she always asks students whether they’ve heard of the concept of affirmative consent or enthusiastic consent. Back when her book was first published, hardly anyone used to raise their hands — but, as she was speaking at college orientations this fall, about 30 percent of the students in those rooms put their hands in the air. She said she’s hopeful that in another five to ten years, that number will get closer to 90 percent.
“I think we’re in a particular moment now where everyone is talking about feminism, and of course there’s also this huge backlash against the terrible ways that colleges are handling sexual assault,” Valenti said. “The reception for the anthology was great, but in 2008 we were not in this sort of feminist zeitgeist cultural moment where everyone was talking about these issues.”
Indeed, despite the contentious debate over affirmative consent laws on the national stage, a recent Huffington Post poll found that the majority of the American public supports California’s new law. The growing acceptance of the issue surprises even Valenti and Friedman sometimes.
“Honestly, when the California law was introduced, I didn’t think it would ever pass. Not because I didn’t want it to, but because it just seemed outside of what I had hoped for,” Friedman said. “I need to dream bigger, I guess.”