California's groundbreaking affirmative consent law has been both lauded and criticized by feminist activists and politicians alike, but there's no question that its intent is positive. The law requires that schools where students receive financial aid uphold an "affirmative consent" standard in disciplinary hearings. This requires that participants in a sexual encounter give “affirmative, conscious, and voluntary agreement to engage in sexual activity” each step of the way in order to confirm that a sexual assault has not occurred. Now that the law is finally in effect, however, we'll begin to find out whether legislating "yes means yes" will help college administrations and the state investigate sexual assault cases or if it will actually further complicate an already messy and painful process.
The law was originally drafted using recommendations from the White House sexual assault task force to combat high levels of sexual assault on campus and to replace the classic "no means no" response to unwanted advances. Proponents of the bill argue that silence or lack of resistance are too often reactions driven by fear rather than consent, and therefore should not be used to determine whether a rape or sexual assault took place. Unfortunately, even with "yes means yes," fear is still a factor that can elicit all kinds of responses — as can inebriation, which can play a major role in these cases. There are multiple scenarios where the affirmative consent law could prove problematic, which only shows how complex the campus rape epidemic is, and how no one law can easily cut through the he-said she-said.
Scenario 1: Bullied into saying "yes"
It's easy to imagine a case where a woman fears for her life and, instead of fighting off an assailant, decides she would rather endure the horror of rape than be murdered. In that situation, a fear-driven "yes" shouted to appease her attacker would mean what — that she wanted it? There is no way to know if a "yes" is said under duress or given freely unless you are physically there or can watch a video documenting the event in question.
Scenario 2: Too drunk to give consent
Women should not have to bear the burden of watching what they drink and wear and say so as not to be brutally violated. However, the reality is that alcohol and/or drugs do cause a major blurring of the lines in cases of sexual assault. There are examples of women being cognizant enough while under the influence to know exactly what they do and don't want, but what if they're unsure?
If a woman says "yes" and doesn't really know what's happening to her, is that freely given consent? What if her sexual partner can't tell she is inebriated? What if she wakes up and doesn't remember what happened to her and decides that it was a violation of her body, but her intoxicated "yes" sincerely seemed sober and legitimate to the guy she was with? Is he a rapist now? These are scenarios ripped straight from the headlines, and no affirmative consent admission is going to do much to resolve them.
Scenario 3: Says "yes" but changes mind
It's common to be OK with a sexual interaction at the outset before an unwanted action occurs, like anal rape or unwilling S&M. How can the "yes" at the beginning of an encounter be nullified by a "no" later? Here is yet another situation where "yes means yes" proves inadequate.
Scenario 4: Does not say "yes," ever
This interaction is the only clear cut case where the affirmative consent law can, by design, actually help. If a sexual assault occurred and she (or he) never said yes, and he has no proof that she did, then punishment can be meted out accordingly.
At least in these cases we'll never again have to hear that she "implied" that she "wanted it" because she was wearing a certain outfit or saying something flirtatious or god knows what else. In scenarios like these, we can all thank Governor Jerry Brown for a small but nonetheless potentially life-changing victory in the national campaign against college campus sexual assault.