What if we re-defined consent with 'yes means yes'?

Activists from Slut Walk London.

Activists from Slut Walk London.


COMMENT

Activists take part in the SlutWalk London.

Activists take part in the SlutWalk London. Photo: Oli Scarff

When it comes to discussions of sex crimes, there will always be certain pockets of society that insist on lecturing everyone about  'false' rape claims. In reality, it’s estimated that only one in roughly six women in Australia who are raped will report the crime to the police.

The idea that we are drowning in a sea of falsely accused men (who are then all falsely imprisoned) is, well, false. So too is the idea that a rape accusation will destroy a young man’s career and irrevocably threaten his livelihood. A man’s ability to survive has always been in direct proportion to his privilege and the willingness of his supporters to write his actions off as ‘mistakes’. 

The problem is in how seemingly difficult it is to prove sexual assault, particularly when the majority are perpetrated by people known to the victims. It is not in dark alleyways or on quiet jogging tracks that most women are assaulted, but in places familiar to them and by people with whom they have some kind of connection.

Most perpetrators are not ‘evil monsters’, but ordinary men. They are brothers and husbands and friends and sons. And for many people, this is an uncomfortable reality, because it means they might know some of them.

Because this probability is so difficult to grapple with, most people simply choose not to - instead, they place the onus on women to protect themselves, to anticipate danger and intent. Don’t drink too much, don’t wear revealing clothing, don’t flirt. Don’t do anything that could confuse a man into thinking that he has a right to have sex with against your will or even your knowledge. If you’re not explicitly saying ‘no’, he can’t be held to account for assuming you meant ‘yes’.

But what if we radically changed the way we defined consent, and the securing of it? What if instead of fixating on whether or not a woman is clearly saying ‘no’, we prioritised instead the message that she is definitely saying ‘yes’? It’s called affirmative consent, and it’s gaining popularity at college campuses across America (a demographic in which 1 in 5 women currently report having experienced sexual assault).

The notion of affirmative consent has even taken hold in California, with a bill recently being co-sponsored by state Senators Hannah-Beth Jackson and Kevin de León and Assemblywoman Bonnie Lowenthal. If passed, SB967 would establish affirmative consent as the standard for determining guilt in rape trials.

As Ms. writes, “An accused perpetrator cannot use self-intoxication or recklessness as a defense, and the person assaulted cannot have give consent if asleep, unconscious, incapacitated due to drugs or alcohol or unable to communicate because of a physical or mental condition.”

Of course, there will be those naysayers who rush to condemn what they’ll no doubt refer to as the bureaucratisation of sex and partnerships. “Sex is going to require a signed contract now!” they’ll spit, ranting about the loss of spontaneity, as if wanting to institute social measures to decrease the rates of sexual assault is akin to wrapping their bedrooms in red tape and government protocols.

For those of us invested in a world in which the accepted norm for sexual interactions really is that they’re participated in with equal consent, it’s a no-brainer. Intermittently checking in with your partner(s) to make sure everyone’s having a good time shouldn’t be seen as an imposition or a buzz killer, but the standard.

For too long, survivors have been expected to shoulder the responsibility for ‘inviting’ their assaults by failing to take the proper measures to prevent them. Even in cases where the judicial system determines guilt (which, remember, we are all urged constantly to wait for before judging) like in the case of the Steubenville rapists, we encounter a narrative that tries to remove blame or fault.

Boys will be boys. They’re young. They have ‘promising futures’. They shouldn’t be forced to pay for one little mistake, as if the rape and ritual humiliation of a woman is the same thing as double parking. And the end result is always the same - the majority of perpetrators go on with their lives with very little ramifications, while the victims are left to deal not only with the fallout but the vilification of all those who blame them for failing to protect themselves against the natural urges of their sons, brothers, friends and heroes.

Teaching affirmative consent benefits everyone. Shifting the demand (both legal and social) onto accused perpetrators to prove that their partners consented makes for a more equitable legal process for everyone concerned. After all, if you can prove she said yes, you should be okay. Right?

 

37 comments

  • I'm in favour of a shift from "no means no" to a "yes means yes" mindset. I'm not sure how it would work legislatively, but it would make things much clearer for everyone involved to get consent first & not just assume you know what the other person was wanting.

    It would be great if "no" actually worked as well.

    Commenter
    AmyG
    Date and time
    February 25, 2014, 9:26AM
    • @Amy...I think your comment captures the problem with "yes means yes" and that is that has as many problems as "no means no" has. For starters it begs the obvious question "yes means yes to what?" and it ignores the issues of ongoing consent and the withdrawal of consent. It also only makes sense if "no means no" has already been established and respected. Is the world really going to be improved by yet another slogan?

      Commenter
      Nick
      Date and time
      February 25, 2014, 9:47AM
    • Further to my comment - I thought the legal standard already is that consent must be non-coercive, affirmative and ongoing? In which case I don't see how yes means yes adds much to the legal situation?

      Commenter
      Nick
      Date and time
      February 25, 2014, 9:50AM
    • Nick, I'm not sure about the legal side of things & I'm not really commenting on that aspect, but I don't see a problem with checking along the way if your partner is ok with how things are going.

      I think yes/positive consent works better than "well, they didn't say no" assumed consent.

      I'd personally love it if "no" was respected, but that isn't always the case.

      Commenter
      AmyG
      Date and time
      February 25, 2014, 10:29AM
  • My understanding of NSW common law is that, outside of long term relationships, an affirmative indication is required for the purposes of consent.

    Commenter
    Matt
    Location
    Sydney
    Date and time
    February 25, 2014, 9:32AM
    • Matt... I believe your understanding of common law is incorrect... rape is rape, whether that be in a relationship, long or short or by anyone else.

      Just because you are in a relationship doesn't mean you have the right to force sex upon them. Consent is required at all times... you can be charged with rape in the marriage!

      This must come from the same handbook which says its ok to smack your wife if she doesn't get a beer for you quick enough!

      My partner was abused by her brother as a young teenager... and like Clementine said she was made to feel it was partly her fault... and guess what nothing happen to her brother.

      To tell you the truth... I wish he was punished for his crime... because that is what it is! Though I am sure he knows what I think every time he sees me... we have a little girl together and I wouldn't let him anywhere near her by herself... once a rapist... always a rapist!

      Its time men stopped kidding themselves and start respecting all the women and girls in their lives!

      Commenter
      cuteclaudia
      Date and time
      February 25, 2014, 3:10PM
  • As a criminal lawyer and a woman who enjoys a robust sex life I note that this article fundamentally misunderstands both the presumption of innocence and the fundamentals of human sexuality. Ridiculous, ill informed, and dangerous thinking.

    Commenter
    REALLY?
    Location
    Sydney
    Date and time
    February 25, 2014, 9:39AM
    • The implicit assumption in this piece of course is that it will need to be men who obtain verbal/written consent from their female sexual partners, because the underlying assumption of the author is that sex is something that men do to women. The law of course can't work that way, so I'm not sure what would be achieved here.

      If neither party verbally asks for consent-- which is very common because most people rely on non verbal queues and body language to provide consent-- both parties could make an equal claim that they were sexually assaulted after the fact. We're in the exact same situation as we were before: it's very, very difficult for the legal system to tell apart a consensual sexual encounter from a sexual assault when the encounter doesn't involve obvious violence.

      I also strenuously disagree with the assertion that false rape claims are not damaging to the reputation and mental health of people falsely accused. This attitude of "boys will be boys" is-- to put it bluntly-- a fantasy that exists solely in the author's mind. Rape is one of the most abhorred crimes in our community and men falsely accused (rare though it might be) often never escape the stigma, even after being exonerated.

      Commenter
      James Hill
      Location
      Melbourne
      Date and time
      February 25, 2014, 9:41AM
      • I agree with the idea of affirmative consent although if it all goes wrong then you are still going to end up with it bring one persons word against the other. In the absence of other evidence of rape though I don't agree though that the burden of proof should be on him proving she said yes, it should be on her proving she said no. We are still supposed to presume innocence until proven guilty are we not?

        Commenter
        Hurrow
        Date and time
        February 25, 2014, 9:46AM
        • My understanding of NSW common law is that, outside of long term relationships, an affirmative indication is required for the purposes of consent.

          Commenter
          Matt
          Location
          Sydney
          Date and time
          February 25, 2014, 9:53AM

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