“Yes means yes,” is the popular phrase paired with the so-called affirmative consent movement that college campuses around the US have adopted as part of their efforts to end rape culture.
But behind the pithy saying, the actual policies that dictate how people must act during sexual encounters is likely misunderstood by many college students around the US, according to a story in The New York Times on Tuesday.
Affirmative consent requires explicit consent before sex, and they have been criticised for putting the burden of proof on people accused of sexual assault who must prove they got a “yes” or a clear nonverbal cue like a nod.
Many students don’t know such policies exist, according to the Times, which travelled to the University of Albany to speak with students.
The Times spoke with Tyler Frahme, a junior at the school, who wasn’t aware about the policy but expressed concern when he heard its message.
“Do you think this is a gender-neutral policy?” he asked. “All these policies cast men in a predatory light. Most guys aren’t like that.”
Affirmative consent policies have been adopted by roughly 1,400 institutions of higher education and differ depending on state. New York becames the second state after California to adopt affirmative consent, and the law includes the following language:
Affirmative consent is a knowing, voluntary and mutual decision among all participants to engage in sexual activity.
Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent
So far, only California and New York have passed affirmative consent laws, though there are others — including Connecticut, New Hampshire, and New Jersey — that have introduced bills in the wake of a renewed focus on campus rape in the US.
As of April, 106 colleges were under federal investigation for allegedly mishandling sexual assault cases. The Department of Education launched the investigations to determine if the schools violated Title IX — the federal law that prohibits gender discrimination — in their responses to sexual violence cases.
As such, schools have begun to face mounting pressure to be more responsive to sexual assault and also to help prevent it, and affirmative consent policies are part of that effort.
While many people agree that rape on college campuses is a problem, affirmative consent has its critics.
Cathy Young writes in Time that it’s troubling for outside parties to be in the business of interpreting sexual cues.
“Nonverbal cues indicating consent are almost certainly present in most consensual sexual encounters,” she writes. “But as a legal standard, nonverbal affirmative consent leaves campus tribunals in the position of trying to answer murky and confusing questions — for instance, whether a passionate response to a kiss was just a kiss, or an expression of ‘voluntary agreement’ to have sexual intercourse.”
However, one proponent of affirmative consent laws, Amanda Hess, argued in Slate that people aren’t always equipped to shout “No!” when they don’t want sex.
Affirmative consent “improves on the old ‘no means no’ model in a number of ways,” she writes. “A partner who is asleep or passed out can’t say ‘no.’ Neither can a partner who’s frozen in shock or fear when an encounter escalates into an assault.”
Tyler Frahme, the junior who initially was defensive after learning about affirmative confirmation, had come around to the policy a month after being interviewed by the Times.
He admitted that he was growing more comfortable with asking questions such as “ You O.K. with this?” or “Do you still want to go ahead?”
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