Affirmative consent is a policy on sexual consent that became a legal requirement in public universities in California in 2014, spread to other schools and states from there, and became a socially and politically mandated policy position in progressive spaces soon thereafter. The idea is that, instead of the traditional standard where rape occurs if someone says no to sexual acts and the aggressor doesn’t stop, the standard holds that someone has to explicitly (affirmatively) consent to sex, or else any sexual contact that follows is legally sexual assault. As with the traditional standard, under this policy consent can be withdrawn at any time. But affirmative consent invites a vexing metaphysical question, which is what constitutes a sex “act”; if consent must be given not merely for an encounter to take place in general but for every aspect of that encounter, it compels people to ascertain when exactly a new element must be consented to, while in the midst of an intimate encounter. Whether this results in a mandatory string of constant “May I place my hand on your right breast? May I place my hand on your left breast?” questions is controversial - defenders of affirmative consent frequently call that a caricature, but that is the letter of the infamous
Any proposed solution to a problem that includes increased bureaucratization will have adherents. Administrators and moral middlemen and the social work class will always say, 'Yes, we need more of that.' And the reasons are obvious - this make-work is the reason for their existence. Of course there will be hysterics and journalists and activists who abet and legitimize the creeping authoritarianism of administering procedural rules for private life to close the loop. I am hopeful that we are at the point where everyone (without a direct incentive) has recognized that none of this carries any true moral authority.
This law practically reads like a parody of Foucauldian surveillance dynamics and internalization: let the lawyers into bedrooms and pretty soon they're asking people to fuck in a lawyerly fashion. Some people might just be scared enough to do it.
> All of these problems, though, are cleared up by maintaining the simple standard of saying that sexual assault occurs (among other instances, such as in the case of intoxication or when the victim is underage) when someone says no and the other person doesn’t stop.
I think that goes rather too far, and risks making the same mistake as the policies you (rightly) criticise. Also, in almost all Western jurisdictions, it's not the law, which is good, because the actual law is actually pretty decent. In (again, most) Western jurisdictions the actual legal rule is that sexual assault (or rape, etc.) happens when:
1. Something sexual happens
2. when one party did not consent
3. and the other party did not have an objectively reasonable belief that consent existed (sometimes phrased as the legally equivalent idea, would a "reasonable person", in that position, have believed consent existed)
That solves a *lot*, because it avoid hyperfocusing on the exact words. If everyone was consenting, then no crime was committed. And if consent did not exist, then you need to demonstrate *some* reason why a reasonable belief in the consent existed, which is (and should be) context specific. It might be "I asked and they said yes", or it might be "I paused, made eye contact, and they didn't say no", or it might be "we're in a relationship where this act is routinely consented to", all of which are perfectly reasonable reasons to believe consent exists in some context but not others.
(The larger issue - and one I think you cover pretty well - is that none of this matters, because we're trying to figure out how the legal system can determine what happened behind closed doors, with no witnesses other than the parties, where at least one of them often has a huge incentive to lie. No standard on the verbal or non-verbal forms can solve the issue that, in the contentious cases, there is - and can be - no evidence that the standard was or was not followed.)
I think affirmative consent makes a lot of sense for the specific case of initiating sexual activity, particularly between people who do not have a pre-existing relationship. I think this is pretty intuitive - I can't just launch myself at a total stranger and expect anyone to take me seriously if my defense is, "well I stopped when she pushed me away and started screaming, so I never violated consent."
I also think it's pretty intuitive that, within reasonable boundaries, once things are going you don't need to ask permission for every little thing you might do.
IMO the problem here is an overly rigid concept of consent. We hinge so much morality (both sexual and non-sexual) on the idea of consent that we want it to be this really clear, binary sort of thing. But I don't think that's actually how it works - consent is almost always more of an ongoing negotiation, which parts that are explicit and parts that are implicit, all of it tinged by complex power relations that make a mess of everything.
I guess if I were writing the rules, I would say that affirmative consent is required to initiate a sexual encounter, but once given, explicit denial of consent is required to revoke that consent. That still seems imperfect, because I do think there are many people who will take advantage of a sexual partner's desire to avoid conflict to do things that their partner does not like and is uncomfortable with. That sort of thing is IMO predatory just as much as other sorts of predatory sexual behavior. But I also doubt there are rules we can put in place to prevent that sort of thing, because the whole point is that predatory people excel at operating around the fuzzy edges and using ambiguity to their advantage.
During the time when this debate was happening, I saw some discussions (can't remember if it was from this book https://www.akpress.org/revolutionstartsathome.html or from more niche/activist circles, since obviously it wasn't in media/journalist spaces) about how affirmative consent gets weaponized by abusers. There were a few different forms this took. Sometimes it was a form of badgering, where by constantly asking for consent before every discrete action this eventually would wear the other person down to get them to give in to doing things they normally wouldn't do. Other times the abuser explicitly knows the other person's boundaries, but then uses affirmative consent to mess with their head by continually asking for consent for acts that they know the other person does not want to do. Or they may constantly asking for consent but then liberally interpret what exactly they were giving permission for (like "can I spank you?" and then getting violent.)
And then ultimately in the end, when the other person speaks out about violated, the abuser gets the plausible deniability of "I have no idea where these allegations are coming from, I explicitly asked for and received consent before literally every single act we did together."
I am no fan of the policy of requiring affirmative consent, for many of the reasons you mention. But I do think it’s worthwhile to encourage a *culture* of more (not strict, but more) affirmative consent, because plenty of unwanted sexual interactions involve men who don’t actually want or intend to commit rape.
One aspect that might be hard for many men to appreciate is how hard it can be for a woman to summon a “no”—not to a rapist, but to a guy she genuinely likes but doesn’t want to sleep with who is really pushing the envelope. It’s strangely hard to shut someone down so directly, especially when you’re young.
Of course, the problem is not purely for men to solve. Women need to get comfortable giving confident and explicit no’s. I just want to push back on the idea that regular guys can’t be part of a bad dynamic.
Does anyone have a better idea? I don't sleep with anyone who I don't know, trust, and communicate well enough with so that consent is obviously and enthusiastically implied, and no substances are involved at first. It's been a fantastic set of rules. But it seems unpopular and gets me labelled as sexually conservative.
I honestly can't picture how tinder+alcohol+consent are ever going to work together.
I like the post a lot. I remember even back in 2005 when I started college there was a push to explain this affirmative consent model to the guys there. During orientation, they put all the guys in a room and explained the policy of unwanted sexual contact and how guys should always ask before getting straight to sex.
There were questions from guys about "What if the mood is good and we both are kissing and feeling up each other?" or "Doesn't asking (especially asking every time if it is a continuing relationship) ruin the sexual mood of the encounter?"
The answers by the admins there just basically to always ask and "No means No."
The stupid thing around this whole policy is that colleges don't give good data about this. I was at one of the biggest party schools in the US and the most visible sexual assault allegations and cases always seemed to come up from Frats. To the point, that some of them got permanently shut down. Though, it was funny that every time the Greek culture leadership would say that this is not our culture and we are good consenting adults who don't take advantage of drunk girls at our parties. But every year, there would be new allegations, investigation, suspensions and sometime expulsions for a Frat's bad behavior.
In my mind, I would like the data from the college to show "Is this a culture problem with Greek organizations? Or just the most visible since people in large groups participate at their events and talk Versus 'Two people have an encounter in a solo dorm room and the women felt that she did not give consent to whatever actions took place in the room." Do Greek sexual assault allegations happen only 5% versus all the allegations happening in the rest of the college or closer to 50%?
The perverse incentive for the college is to hide this stuff (otherwise high rates of rape/assault might turn off prospective students) just like it is the policy for Police departments to not give to good data on police shootings, killings, complaints of excessive force from their officers... Sigh.
I've been thinking lately that we need to have more working class people, more struggling single moms, more people living in the poverty or near poverty index, in government positions. There is no way that people with real problems in their own lives and communities would sign up for this academic, inguistic, and yes, dehumanizing approach to human rights.
“ I don’t, in fact, think that most cases of sexual assault are a matter of mixed signals and misunderstandings.”
I’ve read that a substantial number of these cases amount to (for lack of a better term) rape by fraud. The guy says whatever he needs to say, “I love you. You’re the one.” Yadda yadda and after a few cocktails she agrees to hook up. Then he never calls and she’s devastated. We have the concept of rape by violence or threat of violence but no concept of rape by fraud.
This is a good analysis, but there is a bigger question that I rarely see addressed: why the hell are there different standards of legal behavior for adults who attend college than for adults who do not? This notion seems to be part of the infantilization of undergraduates that, a decade later, leads to cancel culture, etc.
Back when gender trumped race. But it's the same deal as "abolish the police" -- hardly anybody, when pressed, will say they actually want to live in a city with no police; and hardly anybody, when pressed, will say they think the "affirmative consent" version of sex sounds particularly fun.
I absolutely agree. I think affirmative consent is a lovely practice in one's personal life (and definitely upon first encounter!) but it's absurd to see it framed in law. I think universities truly fucked up when they decided to create their own kangaroo courts for offenders though. Why a college student shouldn't be tried in a proper court with a jury if they commit rape is beyond me.
Any proposed solution to a problem that includes increased bureaucratization will have adherents. Administrators and moral middlemen and the social work class will always say, 'Yes, we need more of that.' And the reasons are obvious - this make-work is the reason for their existence. Of course there will be hysterics and journalists and activists who abet and legitimize the creeping authoritarianism of administering procedural rules for private life to close the loop. I am hopeful that we are at the point where everyone (without a direct incentive) has recognized that none of this carries any true moral authority.
This law practically reads like a parody of Foucauldian surveillance dynamics and internalization: let the lawyers into bedrooms and pretty soon they're asking people to fuck in a lawyerly fashion. Some people might just be scared enough to do it.
I agree with a lot of this quite a lot. But...
> All of these problems, though, are cleared up by maintaining the simple standard of saying that sexual assault occurs (among other instances, such as in the case of intoxication or when the victim is underage) when someone says no and the other person doesn’t stop.
I think that goes rather too far, and risks making the same mistake as the policies you (rightly) criticise. Also, in almost all Western jurisdictions, it's not the law, which is good, because the actual law is actually pretty decent. In (again, most) Western jurisdictions the actual legal rule is that sexual assault (or rape, etc.) happens when:
1. Something sexual happens
2. when one party did not consent
3. and the other party did not have an objectively reasonable belief that consent existed (sometimes phrased as the legally equivalent idea, would a "reasonable person", in that position, have believed consent existed)
That solves a *lot*, because it avoid hyperfocusing on the exact words. If everyone was consenting, then no crime was committed. And if consent did not exist, then you need to demonstrate *some* reason why a reasonable belief in the consent existed, which is (and should be) context specific. It might be "I asked and they said yes", or it might be "I paused, made eye contact, and they didn't say no", or it might be "we're in a relationship where this act is routinely consented to", all of which are perfectly reasonable reasons to believe consent exists in some context but not others.
(The larger issue - and one I think you cover pretty well - is that none of this matters, because we're trying to figure out how the legal system can determine what happened behind closed doors, with no witnesses other than the parties, where at least one of them often has a huge incentive to lie. No standard on the verbal or non-verbal forms can solve the issue that, in the contentious cases, there is - and can be - no evidence that the standard was or was not followed.)
I think affirmative consent makes a lot of sense for the specific case of initiating sexual activity, particularly between people who do not have a pre-existing relationship. I think this is pretty intuitive - I can't just launch myself at a total stranger and expect anyone to take me seriously if my defense is, "well I stopped when she pushed me away and started screaming, so I never violated consent."
I also think it's pretty intuitive that, within reasonable boundaries, once things are going you don't need to ask permission for every little thing you might do.
IMO the problem here is an overly rigid concept of consent. We hinge so much morality (both sexual and non-sexual) on the idea of consent that we want it to be this really clear, binary sort of thing. But I don't think that's actually how it works - consent is almost always more of an ongoing negotiation, which parts that are explicit and parts that are implicit, all of it tinged by complex power relations that make a mess of everything.
I guess if I were writing the rules, I would say that affirmative consent is required to initiate a sexual encounter, but once given, explicit denial of consent is required to revoke that consent. That still seems imperfect, because I do think there are many people who will take advantage of a sexual partner's desire to avoid conflict to do things that their partner does not like and is uncomfortable with. That sort of thing is IMO predatory just as much as other sorts of predatory sexual behavior. But I also doubt there are rules we can put in place to prevent that sort of thing, because the whole point is that predatory people excel at operating around the fuzzy edges and using ambiguity to their advantage.
During the time when this debate was happening, I saw some discussions (can't remember if it was from this book https://www.akpress.org/revolutionstartsathome.html or from more niche/activist circles, since obviously it wasn't in media/journalist spaces) about how affirmative consent gets weaponized by abusers. There were a few different forms this took. Sometimes it was a form of badgering, where by constantly asking for consent before every discrete action this eventually would wear the other person down to get them to give in to doing things they normally wouldn't do. Other times the abuser explicitly knows the other person's boundaries, but then uses affirmative consent to mess with their head by continually asking for consent for acts that they know the other person does not want to do. Or they may constantly asking for consent but then liberally interpret what exactly they were giving permission for (like "can I spank you?" and then getting violent.)
And then ultimately in the end, when the other person speaks out about violated, the abuser gets the plausible deniability of "I have no idea where these allegations are coming from, I explicitly asked for and received consent before literally every single act we did together."
I am no fan of the policy of requiring affirmative consent, for many of the reasons you mention. But I do think it’s worthwhile to encourage a *culture* of more (not strict, but more) affirmative consent, because plenty of unwanted sexual interactions involve men who don’t actually want or intend to commit rape.
One aspect that might be hard for many men to appreciate is how hard it can be for a woman to summon a “no”—not to a rapist, but to a guy she genuinely likes but doesn’t want to sleep with who is really pushing the envelope. It’s strangely hard to shut someone down so directly, especially when you’re young.
Of course, the problem is not purely for men to solve. Women need to get comfortable giving confident and explicit no’s. I just want to push back on the idea that regular guys can’t be part of a bad dynamic.
Does anyone have a better idea? I don't sleep with anyone who I don't know, trust, and communicate well enough with so that consent is obviously and enthusiastically implied, and no substances are involved at first. It's been a fantastic set of rules. But it seems unpopular and gets me labelled as sexually conservative.
I honestly can't picture how tinder+alcohol+consent are ever going to work together.
I like the post a lot. I remember even back in 2005 when I started college there was a push to explain this affirmative consent model to the guys there. During orientation, they put all the guys in a room and explained the policy of unwanted sexual contact and how guys should always ask before getting straight to sex.
There were questions from guys about "What if the mood is good and we both are kissing and feeling up each other?" or "Doesn't asking (especially asking every time if it is a continuing relationship) ruin the sexual mood of the encounter?"
The answers by the admins there just basically to always ask and "No means No."
The stupid thing around this whole policy is that colleges don't give good data about this. I was at one of the biggest party schools in the US and the most visible sexual assault allegations and cases always seemed to come up from Frats. To the point, that some of them got permanently shut down. Though, it was funny that every time the Greek culture leadership would say that this is not our culture and we are good consenting adults who don't take advantage of drunk girls at our parties. But every year, there would be new allegations, investigation, suspensions and sometime expulsions for a Frat's bad behavior.
In my mind, I would like the data from the college to show "Is this a culture problem with Greek organizations? Or just the most visible since people in large groups participate at their events and talk Versus 'Two people have an encounter in a solo dorm room and the women felt that she did not give consent to whatever actions took place in the room." Do Greek sexual assault allegations happen only 5% versus all the allegations happening in the rest of the college or closer to 50%?
The perverse incentive for the college is to hide this stuff (otherwise high rates of rape/assault might turn off prospective students) just like it is the policy for Police departments to not give to good data on police shootings, killings, complaints of excessive force from their officers... Sigh.
I want good data.
I've been thinking lately that we need to have more working class people, more struggling single moms, more people living in the poverty or near poverty index, in government positions. There is no way that people with real problems in their own lives and communities would sign up for this academic, inguistic, and yes, dehumanizing approach to human rights.
“ I don’t, in fact, think that most cases of sexual assault are a matter of mixed signals and misunderstandings.”
I’ve read that a substantial number of these cases amount to (for lack of a better term) rape by fraud. The guy says whatever he needs to say, “I love you. You’re the one.” Yadda yadda and after a few cocktails she agrees to hook up. Then he never calls and she’s devastated. We have the concept of rape by violence or threat of violence but no concept of rape by fraud.
This is a good analysis, but there is a bigger question that I rarely see addressed: why the hell are there different standards of legal behavior for adults who attend college than for adults who do not? This notion seems to be part of the infantilization of undergraduates that, a decade later, leads to cancel culture, etc.
Nobody else got a laugh out of that photo?
Back when gender trumped race. But it's the same deal as "abolish the police" -- hardly anybody, when pressed, will say they actually want to live in a city with no police; and hardly anybody, when pressed, will say they think the "affirmative consent" version of sex sounds particularly fun.
I absolutely agree. I think affirmative consent is a lovely practice in one's personal life (and definitely upon first encounter!) but it's absurd to see it framed in law. I think universities truly fucked up when they decided to create their own kangaroo courts for offenders though. Why a college student shouldn't be tried in a proper court with a jury if they commit rape is beyond me.