A bill making its way through the California Assembly is attempting to address the problem of rape on college campuses by mandating “affirmative consent”—a verbal or written yes—before engaging in sexual activity.
California’s not the only one in the midst of moral panic. Here in the UK we’ve seen a bloodbath of historic sexual abuse claims, and endless media coverage of the allegations and trials. The most prolific paedophile was the TV presenter and philanthropist, the late Jimmy Savile, whose charity work in children’s hospitals and care homes gave him unprecedented access to vulnerable youngsters. The convictions of these perpetrators—all male, and almost all elderly—is a reminder that behaviour which was permitted, or at least not talked about, in the 1960s, ’70s and ’80s is no longer acceptable. Obviously this is a good thing.
But are we going too far? Clearly there’s no justification for sexual contact of any kind between an adult male (or female) and an underage child. But what about consenting adults: Where’s the line between normal human flirtation, making a move, and sexual impropriety?
Californian bill SB 967, which has already passed the state senate, proposes that all sexual behavior on state-run college campuses will require “an affirmative unambiguous and conscious decision by each participant to engage in mutually agreed upon sexual activity. … Lack of protest or resistance does not mean consent, nor does silence mean consent.”
SB 967 is designed to make it clear that only “yes” means “yes.” The person who is initiating sexual behavior must receive a verbal yes from the other person before continuing, and this consent must be ongoing through the sexual encounter.
But how will this work in practice? How can verbal consent be legally proven: might this require an independent witness, even a formal contract? Is verbal consent valid if either party is intoxicated? The bill makes clear that consent for kissing does not count as consent for oral sex—well, yes, obviously—but must participants stop in the heat of passion and check before each new “move”? And how long would this process of mutual agreement continue within a relationship?
Critics have highlighted many flaws in bill 967: that putting the onus on individuals to get positive consent for every act of intimacy is both improbable and dangerous to students’ rights; that strictly applying such a standard would make most ordinary couples potentially liable for sex offenses; and that resolving whether “affirmative consent” was not only present but “continuous” throughout an act will be nearly impossible.
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