Is ‘Yes Means Yes’ Unstoppable?

May 2, 2016

Quietly, deliberately, and without much resistance, state legislatures across the country are moving to formally adopt a version of the sexual consent policies that, just 23 years ago, made Antioch College a national laughing stock. The Connecticut Mirror reports:

The House of Representatives overwhelmingly approved a bill late Thursday that requires colleges and universities in Connecticut to use a standard of “affirmative consent” when developing policies on sexual assault. […]

“This is not a new concept being put forth by the legislature; it is just an opportunity to affirm that this is the new paradigm for sexual contact and sexual activity,” said Rep. Tim LeGeyt, R-Canton, who also serves on the Higher Education Committee and supported the bill.
Many questions about this “new paradigm” remain unanswered. If it means what it says—that every sexual act within every sexual encounter must be preceded by a clear, affirmative expression of consent—then isn’t a girlfriend who surprises her boyfriend with a kiss on the lips guilty of sexual assault? And if she is charged with wrongdoing and has to show that she obtained consent, then doesn’t the policy effectively place the burden of proof on the accused to prove her own innocence, like the alleged witches in The Crucible?

There may be less extreme interpretations of the standard, but if so, it’s not clear what they are, or what they would add to the traditional “no means no” paradigm. Some advocates seem to acknowledge that affirmative consent prohibits a wide range of ordinary behavior, but simply assume that people won’t seek redress in seemingly minor cases like the one described above (even though they would be entitled to). To us, however, these policies seem like a menace to civil liberties: By casting such a wide net, affirmative consent gives the authorities broad leeway to pick and choose whom to punish—meaning, as is usually the case with such overbroad legislation, that those least likely to be able to protect themselves will be hit hardest.

Needless to say, skeptics are losing this fight. ‘Yes means yes’ is on the books at a majority of colleges, a growing number of states are formally codifying the standard for all institutions in their purview, and the legal academy is warming to it. It’s only a matter of time before states start mandating “yes means yes” not only in college disciplinary procedures, but in the criminal codes as well. Given the pace of cultural change on sex-related political questions, its not unimaginable that opposition to affirmative consent will in itself be an extreme and marginalized view 10 years from now.

To be sure, the definition of acceptable sexual conduct has evolved over time, and often in benevolent ways. For example, the “utmost resistance” requirement for a rape conviction has, thankfully, fallen by the wayside, along with the patriarchal assumptions it was built on. To its crusading liberal champions, ‘yes means yes,’ probably seems like a similarly salutary development. But one wonders if—not 10, but 50 or 100 years from now—affirmative consent is seen as more comparable to the 20th-century enforcement of sodomy laws: that is, as part of a reactionary and anti-liberal sexual panic that left countless lives needlessly ruined in its wake.