California has enacted SB695, a law which will now required high schools in California to teach students about the concept of “affirmative consent.” According to the law, affirmative consent is defined as “as affirmative, conscious, and voluntary agreement to engage in sexual activity.”
This bill was created and passed as an attempt to address the rape epidemic on college campuses. The Bureau of Justice Statistics has reported that 20 percent of college-age women enrolled in post-secondary education report being sexually assaulted. I know there are a few vile articles, included a recent one in Time magazine trying to dispute that college women get raped at any significant rate. The BJS report only included women who reported being sexually assaulted. We know that rape is under-reported, so the numbers are probably higher. However, even if it was one in every hundred college students reporting rape, that is still too many people being assaulted.
The Good Stuff in the Law
There are a few good things in SB695. It requires that high school students learn about types of sexual harassment and assault, that they are taught the concept of “affirmative consent,” and that they are informed of resources for people who have been sexually assaulted. It makes vague reference to students understanding “boundaries” in relationships.
I am good with that language. Students need to understand the concept of voluntary consent and that some things are not okay – sexual assault, sexual harassment, coercion. These concepts are largely missing from current education around sex. Most sex education to this point has focused on the physical technicalities of sex and pregnancy prevention. We need to go beyond that and SB695 is a baby step in that direction.
What Affirmative Consent Fails To Do
Affirmative consent, both in high school education and college policies, fail to recognize the complexities of sexual interactions and fail to provide an option for people who need to protect themselves.
Affirmative consent is overly simple. “Yes Means Yes” is a reframing of the failed “No Means No” campaigns and techniques. Both fail to recognize how boundaries change and how people communicate about sex. Neither provide an option for someone to change their mind. Neither recognize that a “No” or “Yes” to sex does not cover the myriad of activities included in sex. Neither campaign provide an option for someone effectively stopping a sexual encounter
“Yes Means Yes” focuses on someone giving voluntary consent to sexual interactions. So let’s look at what this might look like on a college campus (since college aged people is the focus of this law).
Two people meet at a college party. They chat, flirt, and laugh. They have a beer or two. They are both sexually attracted to one another. Then comes the point where they want to kiss.
Affirmative consent, at least the way it has been written into college campus policies in California, require both parties to establish mutual, voluntary consent before the first kiss. Go back to your early 20s. How many times did you look at someone you wanted to kiss and stop to say, “May I kiss you?” It happens. Occasionally. This is not a widely spread practice. It is also horribly awkward.
Let’s assume the couple establishes mutual consent to kiss. Next, they want to move on to making out. The way affirmative consent laws are written in California, the couple has to then establish verbally that going on to something beyond kissing is okay. So, our couple is kissing. Then one of them stops and says, “Is it okay if I take off your top and play with your breasts?” This is less likely to happen then asking if it is okay to kiss. This same exchange is then supposed to happen before our couple moves on to having sex.
The reality of sexual interactions is that negotiations about each sex act are not negotiated throughout an encounter. Generally, a couple with start kissing and making out. One partner may move on to other touching and ask through panting breath, “Is this okay?” It is not uncommon to get to the point where the couple wants to have sex and one partner will either indicate verbally they want to have sex or that someone will say, “So, we are going to do this?” When met with some form of affirmative reply, verbal or a head nod or something else, the couple proceeds.
“Yes Means Yes” also assumes that the sexual interaction is linear. Once sex has been agreed to but before it begins, neither party will change their mind. This is not reality in a lot of situations.
Example: A couple agrees to have sex. They start making out. It comes to the point where a condom is needed. One partner hands the other partner a condom. The second partner tosses the condom aside and says, “There is no need for that,” then tries to proceed with having sex. “Yes Means Yes” does not recognize that this scenario may mean one partner goes from a “Yes” to “No” and could go back to “Yes” if the second partner agrees to use a condom.
How Do We Address Rape?
If “Yes Means Yes” and “No Means No” don’t work to effectively address rape, what can we do?
We need a National Safe Word. In the kink community, safe words are used to indicate that some activity is not okay with someone. Commonly, we use “red.” Red is a simple, single syllable word culturally associated with “stop.” Kinksters are taught that when someone says “Red” they need to immediately stop what is happening and address the ne