Why the New CA “Affirmative Consent” Law is a Do-Little Law

I have a big issue with California’s new affirmative consent law for colleges. Under the new law (see text here: http://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml) colleges must adopt policies which require students to get affirmative consent for any sexual encounter. The idea was that just because a partner was unconscious, inebriated, in an altered state and did not protest does not imply the sex was consensual. The premise was that requiring students to approve all sexual contact would prevent or at least reduce rape on campus.

It won’t.

What this law appears to do is to add a requirement to sexual encounters that is awkward for students who follow it and can simply be ignored by students who do not care. My guess is that by the end of this semester, “Yes means yes” will be mercilessly parody  by college students and it will lose its power.

Why do I think this? Because students are in a culture, like the rest of us, that accepts some level or rape and risk and tries to keep all sexual encounters between two people. There is no communal responsibility for keeping people safe. It requires an active “opting in” for sexual activity. Finally, college students have a history of trying to buck authority.

This is why adopting a national safe word is much more effective. A national safe word is an “opt out” option. Think of it like an email list. We have all signed up for something online. If we are asked to actively check a box “opting in” to a list, most of us skip checking the box. If we have to “opt out”  by unchecking the box before clicking “submit” most of us end up on the list because it requires less action to leave the checkmark than to unmark it before hitting submit.

If you have to establish consent before each step of a sexual encounter, that is a lot of active opting in for participation. Some students may actually do this. Most will develop a shorthand or will simply take the first “yes” for a kiss as a “yes” to proceed in general.

A national safe word is the opt out option. If you want something to proceed, you do nothing. If, however, you need to stop for any reason, call a safe word and you are automatically opted out. Rather than having to do something prior to every sexual encounter, you only have to do something for encounters you do not want to engage in. Lower energy, lower commitment, bigger payoff makes a safe word more effective.

Second, affirmative consent places full responsibility on the two participants. If a couple is at a party, most people attending will not be aware of any affirmative consent. There is no way for either party to indicate to a bigger group that they are not a willing participant. Sex remains a private thing.

A national safe word would put the responsibility of safety on the entire campus. You hear a student calling “red” while walking down a dorm or frat house hall, you become aware of a need for help. Affirmative consent has no such safety options. A safe word allows the non-consenting partner to stop action and alert others (if they are in earshot). It moves the responsibility for protecting someone from individual shoulders and places it on the community.

Affirmative consent was also designed to prevent the assumption that its not rape if a person is unconscious, drunk, stoned or otherwise incapable of full consent. We should not need this provision. If we started to teach people that everybody has the right to their bodies and that someone incapable of making an informed decision is not capable to consent, this wouldn’t be an issue at all. We need to start empowering judges to say, “She was drunk” of “He was asleep” and it is therefore rape because we know people cannot consent in those situations then we would be more effective in preventing rape.

The “Yes means yes” still leaves plenty of room for “he said, she said” in rape cases. It still absolves the community of responsibility of keeping people safe. It is onerous. It is not particularly enforceable. It is eminently mockable. It is bound to become one more state required regulation that schools will rush to implement on the books and its impact will be minimal on the actual crime it is meant to prevent.

We need to can “Yes means Yes” and convert to “Red Stops Rape.”


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