The following was written for an undergraduate political science course at the University of Kansas called “Women, Gender and the Law.”
Institutions have passed laws, regulations and policies regarding sexual conduct with increasing popularity in recent years to include definitions of affirmative consent. Affirmative consent, or the yes means yes standard, means that “you have to give your enthusiastic consent, not just at the very beginning or at one point in the act” (PBS Newshour). Despite the standard’s ability to be enforced, heavy regulation and normalization of sexual conduct, the societal benefits of a system based on the outward, mutual agreement of the parties involved is worth examination in a legal context.
Dan Subotnik’s Hands off: Sex, feminism, affirmative consent, and the law of foreplay first outlines the history of regulating non-consensual sexual conduct. While the author asserts that a more sex-positive culture is the end goal, he presents reservations about traditional affirmative consent laws. Only by outlining the historical development of the words that describe sexual assault can the status quo of sexual conduct regulation be understood. All laws regarding sex proscribe an either/or situation. Either you consent to sexual conduct or you do not. William Blackstone, an English jurist in the eighteenth century, defined rape as “‘carnal knowledge of a woman forcibly and against her will.’ Over the years this definition expanded to include threats of force” (Subotnik 268). Though one might estimate that more progress would have been made in almost three hundred years, the Women’s Movement in the 1970s once again shifted the definitions of consent. Until then, women required corroboration witnesses during sexual assault trials and even still “some sixteen state statutes criminalize nonconsensual sex without use of force, half of them treating such behaviors as misdemeanors” (Subotnik 269). Affirmative consent laws then, are a likely result of the legal nonchalance of a system that essentially encourages rape.
From an affirmative standpoint, Subotnik asserts that communication during sex is important, and having to give a partner enthusiastic consent when moving from act-to-act can be a positive way to inspire this type of positive sexual encounter. Some sexual relationships are compared to “the relationship an employer has with a tradesperson” (Subotnik 273). Thus a clear, verbal contract must be agreed to in order to result in a positive transaction for the parties involved. Though this sounds as if it eliminates the romance sometimes involved in sexual relationships, it truly focuses on the emotional impact of sexuality. In a hookup culture with no or unclear expectations of a future relationship, clearer terminology may be needed, particularly if the individuals do not know each other well enough to recognize these sexual desires. Despite these positive bolsters of affirmative consent, Subotnik offers numerous other exceptions.
First, he questions whether the legal system should be involved in the regulation of sexuality, when they are not experts in human sexuality and the repercussions of sexual relationships (Subotnik 251). Though Subotnik brings in additional research about the carnal nature of sex, I have decided to focus on the legal regulation in recent years to narrow the scope. The legal system cannot possibly reform how individuals think about sex and affirmative consent policies fundamentally shift the current standard for evidence. These policies “put the burden of proof on the person who has been accused to prove that they obtained consent, not on the person who was objecting or not giving consent. So…the person who is accused will no longer be sort of assumed innocent until proven guilty” (PBS Newshour).
In regulating how individuals interact when engaging in sexual activity, the sexual contract theory provides an exception for when an affirmative consent policy would still not be enough to result in a positive sexual relationship. During sex, the thought is that “the man will have to ‘make himself a more agreeable companion, or promise [the woman] more mutuality of pleasure, or agree to forgo sex with others, or use a condom,’ and thus produce a better sexual deal for women” (Subotnik 273). Though both parties would be adequately verbalizing their desires, the situation is still not necessarily healthy nor representative of true internal consent.
In addition, examining the language used during sex is important in determining the possibility for a verbally required consent policy. In a 1988 study, 39 percent of women stated that they sometimes said ‘no’ to sex when they meant ‘yes’ (Subotnik 282). Women cited the “‘fear of appearing promiscuous,’ ‘nature of the relationship,’ ‘uncertainty of the partner’s feelings’ and ‘situational problems’” as reasons for not verbalizing their true feelings (Subotnik 282). Finally, some individuals expressed a desire for game playing, which is defined as “wanting the man ‘to beg’…or ‘to get him more sexually aroused by making him wait’ (Subotnik 283). Some of these situations might violate an affirmative consent policy that required verbalization, but would in fact be positive sexual encounters.
In contrast to Subotnik’s rather negative view of affirmative consent laws. Nicholas J. Little focuses entirely on the positive repercussions of imposing regulations on sexual activity. He asserts that “…only a standard of affirmative consent can effectively grant women control over their participation in sexual encounters” (Little 1323). These standards would shift how society views women’s role in sexual relationship while revolutionizing how the legal system examines the process of consenting to sexual intercourse. Little says that affirmative consent will not destroy spontaneity or romance because it will allow women to not simply concede to sex, but to openly enjoy it (Little 1347). Further, “it announces to women that their opinion of whether sex should occur is equally valid in the eyes of the legal system as the man’s” (Little 1347). The author was clear to note, however, that decisions must be made about whether consent must be verbal or understood.
For example, New York’s state university system recently adopted a sexual assault policy for all 64 of its campuses. It reads that affirmative consent requires “clear, unambiguous, knowing, informed, and voluntary agreement among participants in sexual activity” (Campbell). The University of Kansas, in comparison, does not have the same textbook definition of an affirmative consent policy, but it is consent nonetheless. It states that “sexual violence” means any physical act which is sexual in nature that is committed by force or without the full and informed consent of all persons involved” (Policy Library). In examining sexual assault, it must be noted that the most well-intentioned words are often used against or for a complainant in a legal case. The difference between the policies in New York at the University of Kansas may seem minute, but can be the difference between a conviction and a not-guilty verdict for a victim of rape. In Little’s terms, “[p]ermission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act” (Little 1343). Still, Little’s lexicon can still use improvement as “giving authorization to the act” still has a connotation of passivity, not active participation.
Lucinda Vandervort provides further nuance to this issue as she draws parallels between the Canadian legal system and America’s burgeoning affirmative consent obsession. Under current Canadian law, “consent means that the complainant not only communicated agreement by her words or conduct, but also did so voluntarily; that is, subjectively, in her own mind, she actually did want the sexual touching to take place” (Vandervort 150). This system brings the complainant’s state of mind during the sexual act into play, not just her verbal agreement, which points out a potentially harmful result from verbal sexual consent policies. If an enthusiastic verbal agreement is the only necessary bridge to sexual activity, how might individuals in non-normalized sexual relationships be able to cope? Vandervort further asserts that policing sexual conduct forces the legal system to recognize only “normal sexual behavior” and disregard any sexual act whereby verbal consent is not wanted or necessary (Vandervort 147).
Most academic and legal experts agree that consenting sexual activity is necessary in society. The importance of open communication, enthusiasm and emotional well being during sex cannot be understated, but when one examines non-normalized, but still healthy sexual acts, one finds problems with affirmative consent standards. Regulating sexual conduct clearly has problems and the precise words used when writing policy must be chosen carefully in order to remain inclusive to all types of sexual citizens. Whether a system attempts to regulate the internal or external components of an individual’s mind – or both – provides yet another complex element into the sex regulation game. The regulation of sexual conduct is a dangerous game, just as sexual relations can be if both parties are unsure about the other’s perceptions about the situation. When it comes down to it, drawing up a contract might just be the simplest means to the end. But, as Subotnik points out, where’s the fun in that?*
*Just for clarification, a sexual contract is not necessarily the most adequate means to an end. Verbal communication may not be sufficient either. Work with your partner(s) to engage in a positive, safe and fun time.