For over two decades, the slogan of consent has been “No means no.” There isn’t a college student today that hasn’t heard of the slogan, or heard it subsequently mocked. (Remember the fraternity at Yale University that was suspended five years for chanting “No means yes! Yes means anal!”) But within the last two years, sexual assault advocates have reevaluated their vocabularies and settled on a policy of affirmative consent with the revitalized slogan, “Yes means yes.”
Here’s the thing to understand: the change in philosophy isn’t just semantics. “No means no” challenges the legitimacy of the survivor’s accusation. Instead of questioning the alleged offender, survivors are asked did you run, did you fight, how did you resist? We don’t believe women (or men!) when they report sexual abuse and so we make them in charge of defending their case and proving the accused’s guilt. An odd twist when compared to other infractions, where the alleged is responsible for proving their innocence. A policy of affirmative consent shifts the locus of responsibility from the survivor to the alleged. Instead of asking the survivor, did you resist? The question for the alleged becomes did s/he give their consent?
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In California, colleges are required to adopt sexual assault policies that shift the burden of proof from those accusing to the accused. Consent is defined as “an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.” Consent must be ongoing throughout any encounter—such as between kissing and undressing—and consent cannot be given if intoxicated. Further, nonverbal cues don’t count as consent.
Laura Dunn, executive director of SurvJustice, said of the old policy:
“You looked for evidence of resistance. We only talked about what consent was not, which is not a very helpful paradigm. From the victim’s side, it says we have to resist. But even looking at this from the perspective of someone being accused, the traditional definition is telling them that it’s okay to do this until the victim says ‘no’….With affirmative consent, it’s simple. Consent is consent.”
Of course, not everyone is on board. John Banzhaf, a law professor at George Washington University, mocked the idea that students would ask for permission at every point of a sexual encounter and derides the ambiguity of affirmative consent. Admittedly, it’s easier to sway opinion when the survivor must prove they resisted (bruises help) than to prove they didn’t give their consent. Banzhaf calls for refining the “No means no” policies instead, arguing for a unified understanding of consent.
However, supporters of “Yes means yes” aren’t ready to roll over yet. Anti-sexism group UltraViolet released an online video ad for affirmative consent, mocking retro porno to support the idea that consent is attractive. The Consent is Sexy Campaign delivers a similar message and offers free posters for colleges to get the message across.
Most of the concern over the “Yes means yes” policy is that it will create unwitting rapists – students who don’t ask for continual consent or follow nonverbal cues. There’s no question, asking for consent is awkward and pausing in the heat of the moment may be a mood killer. But if you’re afraid to ask if your partner is okay with sex, then you have another problem. Often, sexual assault will occur when the accused misinterprets signals. When their partner stiffens or doesn’t outwardly resist, they will take the lack of a “no” as a green light to continue. Affirmative consent ensures that students ask their partners if they’re okay with going farther. It demands a clear answer and, I would argue, helps to remove ambiguity from the situation.
No policy is perfect. “Yes means yes” has unique problems of its own. But it’s a step in the right direction and one that I would be happy to see our campus endorse.
