A proposed bill in California that would require college students to obtain explicit consent before proceeding with a sexual encounter is sparking controversy over whether that standard can actually work in practice. The legislation, which was introduced as a direct response to the current sexual assault crisis on college campuses, defines consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” every step of the way. There are some concerns that’s much too broad.
“I feel like their hearts are in the right place, but the implementation is a little too excessive,” a biology major at Cal State Long Beach told the Long Beach Press Telegram. “Are there guidelines? Are we supposed to check every five minutes?”
“Whether anyone could feel ‘sexy’ under such conditions seems dubious at best,” concurs a recent piece published in the libertarian magazine Reason that also calls California’s proposal both “absurd” and “dangerous.”
And in a Washington Post article entitled “YOU are a rapist; yes YOU,” law professor David Bernstein argues that requiring a standard of explicit consent for sexual encounters “makes almost every adult in the U.S. (men AND women) — and that likely includes you, dear reader — a perpetrator of sexual assault.” Bernstein is mainly concerned about the ambiguous first steps of initiating a sexual encounter, giving the example of a woman who may unbutton a man’s shirt without explicitly asking.
There are legitimate questions about whether state legislation is the right vehicle for instilling a culture of affirmative consent on college campuses. But much of the hyperbolic concern over turning students into rapists and taking the fun out of sex stems from a misunderstanding about how affirmative consent actually operates in practice.
Affirmative consent isn’t based on the idea that every sexual encounter is a rigid contract between two parties. No one is suggesting that college students need to run through a checklist before unbuttoning each other’s shirts. Instead, it’s more about broadly reorienting about how we approach sex in the first place.
The current societal script on sex assumes that passivity and silence — essentially, the “lack of a no” — means it’s okay to proceed. That’s on top of the fact that male sexuality has been socially defined as aggressive, something that can result in men feeling entitled to sex, while women have been taught that sex is something that simply happens to them rather than something they’re an active participant in. It’s not hard to imagine how couples end up in ambiguous situations where one partner is not exactly comfortable with going forward, but also not exactly comfortable saying no.
Under an affirmative consent standard, on the other hand, both partners are required to pay more attention to whether they’re feeling enthusiastic about the sexual experience they’re having. There aren’t any assumptions about where the sexual encounter is going or whether both people are already on the same page. At its very basic level, this is the opposite of killing the mood — it’s about making sure the person with whom you’re about to have sex is excited about having sex with you.
Making sure someone else is enthusiastic about what you’re doing with them requires you to consider their wants and needs, think about how to bring them pleasure, and ultimately approach sex like a partnership instead of a means to your own end.
It’s admittedly somewhat of a departure from the way our society often approaches sex; recent studies have found that most college students feel uncomfortable voicing their desires during sexual encounters, and there’s a gender imbalance in whose pleasure is prioritized. But the emphasis on getting consent isn’t an effort to turn everyone into rapists. It’s just about encouraging better communication across the board.
“Consent isn’t a question. It’s a state,” feminist writer Jaclyn Friedman, who wrote a book on enthusiastic consent, explained in a blog post back in 2010. “If, instead of lovers, the two of you were synchronized swimmers, consent would be the water. It’s not enough to jump in, get wet and climb out — if you want to swim, you have to be in the water continually. And if you want to have sex, you have to be continually in a state of enthusiastic consent with your partner.”
The people who are worried about affirmative consent standards are typically preoccupied about the people who may be penalized for failing to ask questions every step of the way. What if a college student starts passionately kissing his girlfriend without getting her permission first? What if a couple enjoys explicitly consensual foreplay and then moves on to intercourse without a verbal agreement beforehand?
But those hypothetical situations aren’t necessarily breaches of an affirmative consent standard. If both partners were enthusiastic about the sexual encounter, there will be no reason for anyone to report a rape later. So if college students are worried about protecting themselves from being penalized, it’s not hard — all they have to do is stick to engaging in physical contact with people who are clearly receptive to it at the time. That doesn’t include girls who are passed out drunk, but it probably does include most couples in long term relationships, who are used to communicating their needs to each other. There are certainly some gray areas in sexual encounters, and it’s sexually active young adults’ responsibility to figure out how to navigate them effectively.
That’s likely not enough to pacify the critics who are concerned about women abusing the system and lying about rape in order to ruin men’s lives. But that’s a bigger problem. The supposed threat of false rape claims continues to be trotted out to undermine efforts to enact sexual assault reform, often by so-called “men’s rights activists” who are worried that feminists are primarily interested in victimizing them. In reality, false rape allegations are very rare, comprising about two to eight percent of all reports for a crime that’s already vastly under-reported.
More broadly, it’s perhaps important to remember that California’s proposed law isn’t that groundbreaking on the collegiate level. The National Center For Higher Education Risk Management, which advises higher education institutions about how to craft effective sexual assault policies, has been recommending this type of consent standard for more than a decade. It’s already in place at colleges in the University of California system, as well as at most Ivy League schools. In the midst of increased attention to issues of rape on campus, some universities are in the process of refining their definitions of consent even further to make sure students are on the same page.
“The shift in this country away from defining sexual violence as force-based conduct has been championed by many colleges, and is now the law in a majority of states,” the National Center For Higher Education Risk Management noted in a 2001 guide for campuses. “Many state criminal codes are antiquated, at best. Colleges are on the cutting edge with so many issues, ideas, and research. Sexual misconduct should be no different, and is an area in which colleges really can and do lead the way.”