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'Yes Means Yes' Isn’t the End of Sex

Kelly O'Mara |
September 20, 2014 | 6:05 p.m. PDT



When the California legislature passed SB 967 at the end of August, known as the ‘yes means yes’ campus sexual assault bill, critics decried it as the end of normal sexual interactions. By changing the standard for assault from one of rejection—‘no means no’—to one of affirmation, lawmakers were ruining our perfectly good sex lives. How would we ever be able to get in the mood, if we constantly had to make sure the other person was in the mood too? 

Discussion in one of my classes even devolved quickly into jokes about lawyers and contracts to be signed as part of the worst foreplay ever or perhaps a simple app with a confirmation button. (Not a totally terrible idea, would-be entrepreneurs.)

But that’s not what the bill actually says.

READ MORE: White House: 'It's On Us' To Prevent Campus Rape

“All it says about consent is that it must be affirmative, voluntary, and conscious,” said University of Southern California junior Evan Pensis, who works with student groups on campus to prevent and raise awareness about sexual assault. “[The bill] doesn’t stipulate that the consent needs to be verbal.”

In fact, an earlier version of the law was amended to take out warnings against relying on nonverbal communication. After all, plenty of affirmation in the bedroom doesn’t come from talking.

What the bill does say is that silence doesn’t constitute consent, nor does a “lack of protest or resistance.” Consent can not be given while unconscious, asleep or incapacitated by alcohol or drugs. And, consent can be revoked at any time.

“We’re not against drunk sex,” said Ekta Kumar, director of the USC Center for Women and Men—but they are against using alcohol as an excuse or attempting to take advantage of someone’s incapacitation.

READ MORE: Rape Goes Unpunished At USC

Most students don’t seem opposed to this on a theoretical level, but what does affirmative consent look like in practice?

Practically, if you want to, feel free to ask everyone you have sex with: “Is it ok if we engage in sexual intercourse now?” But, if that’s not your thing, then normal conversation—“What do you want to do?” “Do you like that?” “How’s this?”—all falls well within the definition of affirmative consent, as does just being into the whole experience non-verbally.

An example, said Kumar, used in the freshman orientation this summer was that if one person takes off their shirt and then the other person also takes off their own shirt, that serves as a non-verbal voluntary and conscious affirmation that both people want to have their clothes off. Conversely, if one person does nothing and does not engage, then they may not simply be playing coy. Instead of just going along with things because they feel like they have to, says Pensis, this legal change requires that people “really ask themselves what they really want.”

While most USC students don’t seem to know about the new ‘yes means yes’ law, those that do can enumerate their concerns, which have been repeated in mainstream publications like Time and US News and World Report: Will this criminalize sexual encounters considered consensual under the current cannon? Will men, most often the perpetrators of sexual violence, find themselves overwhelmed by false rape claims, without being able to prove that their partner affirmed consent?

READ MORE: Police Give Talk About Rape Prevention, Inevitably Perpetuate Rape Culture

If faced with a claim of assault or rape, it could be hard to prove that someone kissed you back or took off their own shirt or yelled “Yes!” in ecstasy—unless they were so moved by joy that even the neighbors heard. But, you know what else is hard to prove? That they didn’t say no.

Because of the nature of the crime, rape and sexual assault have always been hard to prove. And the difficulty of that fact falls not on those who could be accused, but on those who could be assaulted. There’s a reason that of the nearly 200,000 sexual assaults each year, more than 50 percent are not reported, according to the Rape Abuse and Incest National Network, with other organizations finding similar numbers. People don’t report because they’re often faced with skepticism, harassment, ostracism or even the belief that, because they were frozen with fear or incapacitated and didn’t say no, it doesn’t count as assault. Even when rapes are reported, very few are prosecuted or lead to jail time. A Department of Justice survey found that just around 4 percent of all rapes result in felony convictions.

Out of all that, just between 2 to 8 percent of rape reports (not allegations, which require the fingering of a specific person and are the next step beyond a report) are believed to be false, according to different studies. False reports tend to be the domain of attention-seekers, not college students who later regret a previously consensual encounter—a common claim among critics.

“It just doesn’t really happen,” said Kumar.

There is little reason to believe that requiring both (or more) parties to actively be into the sexual experience would increase the number of false reports. All ‘yes means yes’ does is clearly remove the excuses to commit assault.

Most USC students I spoke with thought the new law seemed like a good idea after it was described to them. But, that may be because they were operating under it without even knowing. USC already requires affirmative consent, said Kumar. The school also started a program this year for incoming freshman, which goes through a training during Welcome Week and then an online tutorial in both the fall and spring. The school, said Kumar, is also working with the Interfratenity and Panhellenic Councils to do similar trainings around the Greek system.

SB 967 may not change things specifically on USC’s campus, but it would apply to all colleges receiving state funds for student aid. Gov. Jerry Brown has until Sept. 30 to sign the bill for it to become law. If that happens, then college students across California will have to start saying yes, instead of just not saying no.

Contact Contributor Kelly O'Mara here; follow her on Twitter here.

Editor's Note: This story was changed after publishing to correct a statement made by Evan Pensis. "Assertive" was changed to "affirmative."



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