Yes Means Yes: Redefining Sexual Consent

By Clarissa Manning

Recently, the Thames Valley Police Department in the United Kingdom made a video comparing sexual consent to a person consenting to drink a cup of tea. Statements made with comic intent, such as “unconscious people don’t want tea, and they can’t answer the question ‘do you want tea,’” and “If someone said ‘yes’ to tea around your house last Saturday, that doesn’t mean they want you to make them tea all the time,” illustrate the very serious principles of affirmative and continued consent. The ambiguities that now exist in and among the legal interpretations of consent constitute a murky area where the imperfections of human nature and jurisprudence collide.

There is a certain frequently-occurring situation in which one individual’s opposition to a sexual advance is interpreted by the other individual as a challenge to persuade. This is not a harmless act of persistence. No person, after turning down the advances of another, should be subjected to further unwanted advances. The old adage “no means no” is directly applicable to this scenario. However, it turns out that this notion does not go far enough in spelling out the conditions by which a person, having rebuffed a sexual advance, can claim to have been raped.

A person need not explicitly voice or present opposition to a sexual advance to establish a lack of consent, according U.S. Code 920, the federal statute that defines rape. However, in 2012, the Connecticut Supreme Court overturned the conviction of a man found guilty of raping a severely handicapped woman. Their reasoning? The prosecution did not provide the jury opportunity to examine evidence that the victim was capable of indicating her desires through physical means. Their finding rests on the assumption that, had the jury found her capable of indicating her lack of consent, they would have decided the case differently. This, however, is a fallacy.

Some argue that establishing non-consent as the absence of affirmation is tricky for the courts to do. It shouldn’t be. A popular recent movement aims to redefine consent by affirmation, rather than by the lack of opposition. In support of this cause, California Governor Jerry Brown signed SB 967, known as the “yes means yes law,” which requires schools to uphold an affirmative consent standard when investigating sexual assault allegations. Put another way, students are required to engage in conscious and voluntary sexual activity. This new emphasis on affirmative consent, rather than the reliance on the absence of opposition, is an obvious step in the right direction. It should be the nationwide standard.

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