Oct 8th, 2019, 05:32 PM

Affirmative Consent Laws: What’s the Point?

By Monique Callender
Image Credit: freestocks/Joanna Malinowska
Recent changes in consent laws in California and New York have some people upset.

For so long we have relied on the implicit understanding that when it comes to sex, men are the pursuers.  Romance novels and movies play on this aspect.  Sexual persistence is as portrayed as romantic. We are groomed to grow up with the idea that not knowing what will happen next is the ideal.  The woman’s role is to play “hard to get” until, overwhelmed with desire, she finally gives in. 

However, in 2019, this traditional sexual script is woefully outdated.  Since the MeToo movement, it has finally come to the forefront that this traditional way of doing things is not working.  This has led some states to revise their laws from “no means no” to “yes means yes,” in other words, affirmative consent.

Generally, everyone agrees that consent is important; the main thing some people have an issue with is affirmative consent.  States like California and New York have implemented affirmative consent laws.  These laws take consent a step further by saying that in order to engage in sexual contact, both partners must explicitly state that they are okay with moving forward before each sexual act.  

I was chatting with a friend after dinner last week and the topic of consent came up. I was shocked at her attack against affirmative consent. I never expected to hear a woman support non-consent.  So, I decided to do some research. Turns out, she’s not alone. I found several opinion articles that agreed with her. As Megan McArdle states in her opinion column in the Washington Post, “The sexual ideal is to lose yourself in the moment, the other person. That cannot happen if every encounter must be navigated with the lawyerly detachment, and mutual wariness, of a bilateral trade negotiation.”

For many people, just the idea of obtaining verbal consent continuously throughout the moment is a total mood killer.  In fact, research published in the Journal of Sex Research shows that while the majority of people would agree that verbal and continuous consent is important, those same people admit that in practice they usually rely on non-verbal consent cues.

The problem with these arguments is that they are relying on outdated heteronormative sexual scripts to make their argument. Breaking from the script you know can be scary, but liking things the way they were is never a good enough reason to defend practices that have been proven to cause harm. The unfortunate reality is that many people in 2019 still subscribe to these beliefs because that’s all they know. Sex can be an awkward topic. 

These opinion holders aren’t considering the whole picture when it comes to consent laws.  

Currently, most states have laws that would be considered “no means no.” Basically, sexual harassment and rape are bad; don’t do it.  However, when lawbreakers are caught, they claim to have “misunderstood” the situation.  This is called “mistake of fact.” While mistake of fact is not a legal defense, it is often taken into consideration in legal proceedings. Furthermore, it often inoculates the accused from any consequences of their behavior.

Laws shape our social behavior. If the language in the law is clear about what consent should mean, then that gives us a better standard to against which to measure our behavior. Affirmative consent laws are meant to change the status quo of “no means no,” which places the responsibility of non-consent on the attacked. With affirmative consent,  the standard is raised to obtaining clear verbal consent.  One yes does not immediately grant an all access pass to another persons body.  This negates a “mistake of fact” defense because the question then becomes, “did you get consent?” posed to the instigator instead of, “why didn’t you just say no?” posed to the victim.  

Affirmative consent laws are not made to rain on your romance parade.  They’re an important step in the effort to change ideas and behaviors away from the traditional sex script of male dominance and mystery.  

If you’re looking to learn more about how to engage in affirmative consent, AUP for Consent is an active club whose mission statement is: “to create a community for survivors and promote the conversation and education surrounding consent, sexual assault, and healthy relationships.” 

You can contact them at consent@aup.edu