The “Yes Means Yes” Campus Sex Laws Won’t Turn Everyone Into a Rapist

October 12, 2014

By Jenée Desmond-Harris at Vox.com

With headlines asking whether a new California law will “change the rules of sex” and critics like Time‘s Cathy Young calling it a “terrible idea” that will “dictate how people behave in sexual encounters,” it’s clear critics are worried that SB 697, nicknamed the “yes means yes” law, will transform what was once normal sex into assault.

And, in a sense, they’re right. Under the recently-passed legislation, most of the state’s colleges and universities’ sexual assault policies must now require “affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.” That probably means saying “yes” out loud, or at least offering an enthusiastic smile or nod, at the outset of every single sexual encounter.

The standard puts a lot of college students — many of them in committed, healthy, happy relationships — on the wrong side of the law. As Joe Cohn of the Foundation for Individual Rights in Education, an advocacy group, put it to the Economist, some view the affirmative consent standard as “just not consistent with how adults act.”

As a result, critics worry that the law will raise “murky and confusing questions” that flip previously acceptable sexual encounters into assault. Plus, they’re unsettled by the fact that much college sex will become technical assault but simply won’t get punished unless a student complains. And they’re right about that. It just doesn’t matter.

1) In practice, the new law changes very little

Before the passage of this law, the affirmative consent policies it requires were already in place in the entire University of California system, not to mention most Ivy Leagues and other universities. There’s been no disaster.

There aren’t reports of rampant retroactive, “I didn’t affirmatively consent” allegations, nor crises of conscience on the part of couples that fail to establish consent with every sex act and then have to live with the fact that they’re technically violating their school’s policies.

For many California students, the only news is that their school’s policies now have the backing of state law. That’s somewhat noteworthy as an intellectual concept, but it changes close to nothing in real life.

2) Nobody is talking about making sex without affirmative consent an actual crime

This new law doesn’t change the legal standard for sexual assault. Its affirmative consent requirement only applies to college and university policies, which can punish students in various ways, like expulsion, but are never going to get anyone thrown behind bars.

So while inconsistent enforcement of actual laws (for example, the ones that prohibit possession of marijuana, and that affect different communities differently) is a real concern, this is a much lower-stakes situation that shouldn’t inspire the same fears.

Now, it’s true that this law, it it proves successful, might inspire activists to push for affirmative consent laws that change the legal definition of sexual assault. But that will only happen if the Yes Means Yes law cuts sexual assaults on campus without creating devastating unintended consequences. In that way, this is a low-stakes testing ground for the idea.

3) People can adjust

Students who are shocked to learn that what they’ve always thought of as normal, non-affirmative-consent sex could be a violation of school policy under this new law have a remedy: obtain affirmative consent. Ask for and give permission in the way the statute explains.

Making that change wouldn’t be a bad thing. In fact,  if the law is the beginning of a cultural shift around the idea of consent, and, as a result, we all agree that women need to do much more than simply not resist for sex to be okay, that’s great. As my colleague Amanda Taub put it,

When our society treats consent as “everything other than sustained, active, uninterrupted resistance,” that misclassifies a whole range of behavior as sexually inviting. That, in turn, pressures women to avoid such behavior in order to protect themselves from assault.

As a result, certain opportunities are left unavailable to women, while still others are subject to expensive safety precautions, such as not traveling for professional networking unless you can afford your own hotel room. It amounts, essentially, to a tax that is levied exclusively on women. And it sucks.

Yes, it is a different standard. No, it is not impossible to meet.

4) It’s not unusual to make something that’s normal in everyday life unacceptable under college policies

Again, this new law is about college and university policies, not criminal statutes. And it’s not at all unusual for schools to have policies that fly in the face of what the majority of college students actually do.

Some colleges, for examples, have policies that prohibit students from drinking in the dorms. But you don’t hear people fretting about how these institutions are turning your average 21-year-old senior into a furtive, guilt-ridden criminal.

College kids have always had to agree to adhere to their schools’ policies, which sometimes punish a wider swath of behaviors than criminal laws because they’re designed to create safe and healthy campus communities. The policies that are required by the new law are just the latest in this category.

5) Couples who agree to pass on affirmative consent, like couples who cohabitate before marriage, won’t be punished

In practice, the new standard will only come into play when someone has made an allegation of sexual assault. The lives of the majority of students won’t be impacted (unless, that is, they are inspired to be more clear about consent during sex, which, as discussed above, would be a good thing) any more than the lives of many couples are impacted by the archaic Florida, Michigan, Mississippi, North Carolina, Virginia, and West Virginia state laws that prohibit cohabitation before marriage.

So while yes, the “rules of sex” will technically change, It’s not as if couples having sex without the kind of explicit affirmative consent required by school policies are now going to be tracked down and expelled.

6) The worst possible consequences are not very likely or very bad

Sure, the worst nightmare of men’s rights advocates could come true. A woman could theoretically frame her partner by reporting that she didn’t give the required consent, when in truth she was a willing — if not explicitly affirmative — participant in the sexual encounter.

But this is highly unlikely to happen. The fact that we haven’t heard about a wave of cases hinging on the affirmative consent standard at the schools that already use it seems to confirm that.

And as for the students who find themselves paralyzed with worry about whether a sexual situation that doesn’t meet the law’s high standards might retroactively be characterized as assault? They can — you guessed it — simply make absolutely sure to obtain affirmative consent every time.

That’s easy. Not to mention, it’s exactly what the law intended.