A Revisit To “Yes Means Yes”

Ken AshfordEducation, Women's IssuesLeave a Comment

The New York Times did a great story yesterday about the virtues and the difficulties of teaching, and enforcing, a “yes-means-yes” policy in schools, particularly colleges.

I have written about this before, but by way of quick background, there is a movement on college campuses and in high schools to move away from the “no means no” mantra and teach/enforce “yes means yes” — also known as “affirmative consent” — as a way to reduce the troubling incidences of sexual assault on campus.

In a nutshell, I was critical of “affirmative consent” in my prior post.  My objections fell loosely into one of two categories:

(1)  As a university policy or disciplinary “law”, affirmative consent is unworkable and unrealistic.  It turns everybody — men and women into would-be rapists.  And this can be shown by a simple thought experiment.  Think about the last time you had sex with your spouse/significant-other.  At each stage, as you took it to “the next level”, did your spouse/significant-other give affirmative consent, i.e., did they say the actual word “yes” to your question about taking it to the next level?  They didn’t?  Well then, under the policy imposed by some universities, you committed sexual assault on that person.  Are you surprised to learn that?

Obviously, that is the earmark of a flawed policy.  If this law wouldn’t work in the real world… why would it work on college campuses?

Since I last wrote about affirmative consent, the law has changed a little in California. Originally, affirmative consent meant an actual “yes”.  The actual word.  Apparently, even lawmakers realized this was unrealistic and made the law slightly better.  Now, affirmative consent includes “clear body language” as well.

But of course, that begs the question: What constitutes “clear body language” showing affirmative consent?  Yes, we can talk about the obvious triad of truths (“Consent cannot be given when a person is incapacitated”, “Silence or lack of resistance, in and of itself, does not demonstrate consent”, and “When consent is withdrawn or can no longer be given, sexual activity must stop”), but once you get past those sub-rules, we get into gray areas of ambiguity.  Let’s say your would-be possible sexual partner dances on a table after a glass of wine, removes some articles of clothing, and playfully nibbles your ear.  Is that clear body language showing affirmative consent to intercourse? (I would argue “no”, but — and this is important — that’s just my opinion).  Would it be affirmative consent to… something?  Is he or she incapacitated to give affirmative consent from the one glass of wine?  What if you didn’t know he or she had imbibed wine?  It’s not hard to imagine real-world scenarios where ambiguity enters the picture — something you do not want to have in a university sexual assault policy where the consequences are (1) being a rape victim and/or (2) being expelled from university as a rapist.  In both cases, that follows you around for life.

This is why I say that these university disciplinary policies, even modified to include “body language”. are largely unworkable.

Turning to my second objection….

(2)  Affirmative consent gives credence to a bad faith argument made by rapists.  The movement from “no means no” to “yes means yes” seems to reinforce the notion that sexual assault happens because of a miscommunication.  In other words, it presupposes that either (a) women are too stupid/timid to communicate “no” effectively or (b) men are too stupid to understand that a woman has just communicated “no”; or (c) some combination of a and b.  There is no way of proving (or disproving) this, but I believe that the vast majority of women know how to say “no” non-verbally if not verbally.  I also believe that the vast majority of men know when women are not giving consent, even if they fail to say “no”.

In my view, the problem isn’t that we need to teach young people to communicate and listen better; it’s that we need to teach men not to ignore what they know to be true — i.e, that a passed-out woman, or a woman who pulls away when you kiss her, etc. is not giving consent.  It’s not that men fail to understand when a woman lacks consent; it’s just that bad men simply don’t care.  I believe that you can teach some men all you want about consent, and play all the “no means no” and “yes means yes” classroom exercises you want, and it won’t make a lick of difference.  Because the problem (to repeat myself) isn’t that some men miss the signals from women; it is that they ignore them.

I am mindful of what Amanda Marcotte has written:

The “no means no” movement was about shutting down rapists who tried to confuse the issue over whether it really counts if she came to your room/she’s your wife/she wore a short skirt/she accepted the drink you drugged. “Yes means yes” is about shutting down rapists who claim, falsely, to not know it’s wrong to rape someone even if she is too drunk to stand/she said “I want to go home”/she just laid there crying instead of asking me to stop. It’s about shutting down bad-faith excuses by shifting the discussion to how the aggressor knew he had a yes.

I think that’s pretty astute.  But just because a rapist makes a bad faith argument “I didn’t know it was wrong to have sex with a woman as she is crying” doesn’t mean we have to honor his argument.  And that’s what affirmative consent does.  It treats that bad faith lie as if it was made in good faith.

But men in those situations are not stupid — they just pretend to be.  If a woman is crying, he knows he has no consent. We don’t need to teach him what consent is.  In fact, as Marcotte cites, 61 percent of men (according to one study) say they get consent via body language, so let’s not pretend that they aren’t aware of the concept at all.

Could I be wrong?  Maybe.  As I’ve conjectured before, perhaps I give too much credit in the ability of women to say or convey “no” under normal non-pressure circumstances (obviously, if a woman is being pinned down or held at gunpoint, saying “no” seems superfluous — I’m not talking about those situations).  And perhaps I give too much credit to men and their ability to “read” when a woman gives a non-verbal “no”.  I don’t know.

That said, as a sex ed tool, there is certainly no harm in teaching “yes means yes” and “no means no” if it gets everybody — men and women — thinking about consent.  But it is not going to get the would-be rapists to care about consent.  The only way to do that is to (a) take sexual assault allegations more seriously and (b) make guilty parties actually pay for what they did, rather than sweeping it under the rug.

Anyway, let me turn to the New York Times article, and address the issues brought up there:

SAN FRANCISCO — The classroom of 10th graders had already learned about sexually transmitted diseases and various types of birth control. On this day, the teenagers gathered around tables to discuss another topic: how and why to make sure each step in a sexual encounter is met with consent.

Consent from the person you are kissing — or more — is not merely silence or a lack of protest, Shafia Zaloom, a health educator at the Urban School of San Francisco, told the students. They listened raptly, but several did not disguise how puzzled they felt.

“What does that mean — you have to say ‘yes’ every 10 minutes?” asked Aidan Ryan, 16, who sat near the front of the room.

“Pretty much,” Ms. Zaloom answered. “It’s not a timing thing, but whoever initiates things to another level has to ask.”

The “no means no” mantra of a generation ago is being eclipsed by “yes means yes” as more young people all over the country are told that they must have explicit permission from the object of their desire before they engage in any touching, kissing or other sexual activity. With Gov. Jerry Brown’s signature on a bill this month, California became the first state to require that all high school health education classes give lessons on affirmative consent, which includes explaining that someone who is drunk or asleep cannot grant consent.

Again, I don’t think there is any harm, and probably some good, in requiring students in sex education classes to think about, and talk about, the concept of consent.  Affirmative consent, lack of consent — it’s all good fodder.

I also applaud the gender-neutral approach that Ms Zaloom employs;  Notice she did not say “the man must ask” but says instead, “whoever initiates things to another level has to ask.”  There are many reasons to phrase it this way — but certainly one reason has to stem from an acknowledgment that sexual aggression can happen in any configuration (a female friend who attended an all-female college told me that sexual assault was common within the student body there as well).

Last year, California led the way in requiring colleges to use affirmative consent as the standard in campus disciplinary decisions, defining how and when people agree to have sex. More than a dozen legislatures in other states, including Maryland, Michigan and Utah, are considering similar legislation for colleges. One goal is to improve the way colleges and universities deal with accusations of rape and sexual assault and another is to reduce the number of young people who feel pressured into unwanted sexual conduct.

Critics say the lawmakers and advocates of affirmative consent are trying to draw a sharp line in what is essentially a gray zone, particularly for children and young adults who are grappling with their first feelings of romantic attraction. In he-said, she-said sexual assault cases, critics of affirmative consent say the policy puts an unfair burden of proof on the accused.

Well, I am among the critics of those colleges who adopt affirmative consent as the standard in campus disciplinary decisions.  However, my issue isn’t so much about the burden-shifting.  I agree that it does shift the burden to the accused, and that will undoubtedly lead to bad results, as evidenced by some recent unfortunate well-publicized bogus rape stories.

But at the same time, anyone who has been paying attention to this issue knows that there is and has been very poor treatment of accusers.  And although I think, as in all crimes, the burden should rest with the accuser, universities in particular have been outright barbaric in “turning it around” and prosecuting those who claim to be victims.  Only within the past few years have steps been made — small ones — in that regard.

“There’s really no clear standard yet — what we have is a lot of ambiguity on how these standards really work in the court of law,” said John F. Banzhaf III, a professor at George Washington University Law School. “The standard is not logical — nobody really works that way. The problem with teaching this to high school students is that you are only going to sow more confusion. They are getting mixed messages depending where they go afterward.”

But Ms. Zaloom, who has taught high school students about sex for two decades, said she was grateful for the new standard, even as she acknowledged the students’ unease.

“What’s really important to know is that sex is not always super smooth,” she told her 10th graders. “It can be awkward, and that’s actually normal and shows things are O.K.”

The students did not seem convinced. They sat in groups to brainstorm ways to ask for affirmative consent. They crossed off a list of options: “Can I touch you there?” Too clinical. “Do you want to do this?” Too tentative. “Do you like that?” Not direct enough.

“They’re all really awkward and bizarre,” one girl said.

“Did you come up with any on your own?” Ms. Zaloom asked.

One boy offered up two words: “You good?”

That drew nearly unanimous nods of approval.

Personally, I feel this way: since your first sexual encounter is going to be awkward anyway, it might as well be really awkward by introducing the concept of affirmative consent to 10th graders.  Maybe we CAN succeed in bringing up a generation that is better at thinking about consent.

As an aside: I know that high school kids having conversations like this freaks out the conservative right.  To that I say, given the choice between your prudishness, on the one hand, and educating young students in order to avoid sexual assaults, on the other hand — I’m going to say…. uh… “fuck you” to you prudes.  Without your consent.

Anyway — to reiterate —  don’t think affirmative consent is a realistic concept to introduce to those who are already sexually active, which includes many if not most college-age people.

Under the new law, high school students in California must be educated about the concept of affirmative consent — but they are not actually being held to that standard. So a high school student on trial on rape charges would not have to prove that he or she obtained oral assent from the accuser. That was the case with a senior at the elite St. Paul’s School in New Hampshire this year who was accused of raping a freshman. The senior was acquitted of aggravated sexual assault but found guilty of statutory rape — sex with a minor.

As for college students, the law passed last year in California does not change the way sexual assault cases are prosecuted in criminal courts, only in the way they are handled by colleges, which are permitted to use affirmative consent as a standard.

Right.  And in fact, you couldn’t use affirmative consent as a standard in the real world.  It violates any number of constitutional amendments, including the First Amendment.  Liberals complain about how conservatives want to legislate what goes on in people’s bedroom — well, can you think of a law more intrusive than a law which requires people to say “yes” to each other at every stage of their sexual interactions, every time?

It’s totally unconstitutional and unworkable, which is why I don’t think that policy can work in universities.  Fortunately, the New York Times articles gives some real-life examples:

Last year, Corey Mock, a student at the University of Tennessee-Chattanooga, was expelled after officials there found him guilty of sexual misconduct because he could not prove he had obtained verbal consent from a woman who accused him of sexual assault. But a Davidson County Chancery Court judge ruled in August that the university had “improperly shifted the burden of proof and imposed an untenable standard upon Mr. Mock to disprove the accusation.” The judge called the university’s ruling “arbitrary and capricious.”

Right.  I agree.  In fact, in many cases, proving your sexual partner said “yes” is even harder than proving that you, as a sexual assault victim, said “no”.

In another case, a former student at Clark University in Worcester, Mass., who was evicted from his dormitory room after a student accused him of rape, filed a lawsuit in federal court in August against the university and several administrators. The former student, identified in court records as John Doe, argued that he had been denied the rights promised in the student handbook and that the adjudicators of his case had ignored text messages that supported his view of the encounter.

Again, at best, when it comes to disciplinary policy, the shift from “no means no” to “yes means yes” doesn’t take you anywhere.  It still leaves us with a he-said-she-said dilemna.  Except we’re now arguing about “yes” instead of “no”.

Kevin de León, the California State Senate speaker pro tempore and lead sponsor of the high school legislation, said the new law was as much about changing the culture as it was about changing the law.

“Sexual violence has always thrived in the gray areas of the law,” Mr. de León said. “What we want to create is a standard of behavior, a paradigm shift as much as a legal shift. We’re no longer talking about the old paradigm of the victim being blamed for their own behavior.”

Without doubt, Mr. de Leon has the right sentiment.  We do want to move away from the victim-blaming behavior.  But affirmative consent, I maintain, doesn’t achieve that goal when it comes to punitive tribunals. As my thought experiment above shows, it simply turns everyone, men and women, into would-be rapists (as well as victims, and often within the same sexual encounter).

There’s also a subtle paternalistic sexist underpinning to Mr. de Leon’s comments.  Again, I think he means well, but he implies that woman are incapable of saying (or showing) “no”, and so we must move away from that “old paradigm” in order protect women, seeing as how they are apparently made of candy-glass. I don’t know how many feminists would agree with that perception.

But among teenagers, who are only beginning to experiment with their sexuality and have hazy ideas of their own boundaries, the talk tends to be about “hooking up” and what the new rules are. “Kids are still establishing patterns of behavior, and they have a lot of specific concrete questions,” said Ms. Zaloom, who has written a curriculum for affirmative consent programs that is being used throughout the country.

Students will ask, “Can I have sex when we are both drunk?” she said. “I get this one a lot: If I hook up with a girl and the next day she decides she didn’t want to do it, then what do I do?”

These are not easy questions to answer.  And Ms. Zaloom, to her credit, doesn’t answer them.

Ms. Zaloom will typically use such questions as a way to begin talking about the benefits of sexual partners’ knowing each other. But sometimes, there are no straightforward answers, she said. “We’re trying to show them very explicitly that sex has to include a dialogue,” she added, “that they have to talk about it each step of the way.”

And that’s smart.  But it also highlights the problem facing universities today as they try to use affirmative consent as a tool of enforcement.  If there are no simple answers, it may be a good starting point for a sex ed discussion, but how could it work as a sexual assault policy?

Take, for example, the first question.  What if both participants are drunk?  (I’m going to go out on a limb and suggest that, throughout time and memoriam, this accounts for a wide percentage of sexual encounters in college).  If both participants were drunk, who is responsible for seeking, and giving, affirmative consent?  Will they remember if it was given at all?  Are they both victims?  Did they both violate university policy?

You see the problems with affirmative consent.  Good teaching tool, but useless in the real world.

One 10th-grade girl asked about approaching someone about a casual encounter. “What if it’s just a one-time thing?”

“You have to be prepared to say ‘no’ and hear ‘no,’ ” Ms. Zaloom said.

Another girl chimed in, “If you don’t care about a person too much, you might not be inclined to listen.”

Yes, chiming-in girl.  That’s the problem.  It’s not a question of not saying, and not hearing.  It’s is a matter of “not listening”.  Or more accurately, not caring to listen.  Pigs be pigs.

Ms. Zaloom suggested making clear plans with friends ahead of time, like making pacts to leave parties together. And she urged them to have conversations with potential sexual partners “before you get swept up in the moment.”

“How do we even start a conversation like that?” one boy wondered.

“Practice,” Ms. Zaloom answered.

Well, I think  perhaps Ms. Zaloom punted that last question, but that’s not the point.  The point is that, as a sex ed, tool, anything — anything – that gets young men and women focusing on consent will (one hopes) affect their subsequent behavior.  Does it work?  I refer to another NY Times article, and what one male student said:

Since first hearing about the new policy, he said, he had been practicing consent almost religiously. He now asks for consent once or twice during sexual encounters with women he knows well, and four or five times during more casual or first-time hookups.

“I certainly didn’t expect the policy to change my behavior,” he said, “but it has.”

It’s getting to be a little more comfortable, he said. He crafts and poses questions like “You O.K. with this?” “Do you still want to go ahead?” and “Hey, you don’t have to do this if you don’t want to.”

Well, good!  But….

One woman he was having sex with for the first time accused him of being devious in asking for consent. She thought he was using reverse psychology to get her in bed. That wasn’t it at all, he said.

Affirmative consent is a reverse psychology tactic to get women to have sex?  Well, I’m not sure about the “reverse psychology” part but I certainly like the idea of linking consent with having good sex.   That’s certainly the thrust of certain campaigns like “Consent is Sexy“.  I think we need more of that kind of educational campaign, and less rule-making where universities turn sexual interaction into basically an exchange of legal documents.  Make it a cultural change, and change the way people think about sex.  That’s the education prong.

And as for the university discipline policies?  How do you balance the rights of the accused with the rights of the accuser?  Yeah, it is thorny.  It is difficult.  But the first thing universities need to do, rather than legislate and script the sexual encounters of students (which, I maintain, is probably unconstitutional), is demonstrate their own seriousness about the issue.  Universities need to develop a zero tolerance policy.  Not just develop a zero tolerance policy, but implement it. No sweeping under the rug because the accused violater is the star halfback.  No belittlement of accusers and asking the victims(!) how they could have avoided the situation better.  No more looking at sexual violence as “hookups gone bad”.  No more red tape and delayed justice.  In short, if university administrators (who are now facing Title IX lawsuits) need to acknowledge their past errors, and not force students to engage in some ridiculous charade.