Last Thursday, New York governor Andrew Cuomo announced that the state's university system, SUNY, will be enacting reforms in the next 60 days regarding how campuses prevent, investigate and prosecute sexual assault and rape cases at the university level across its 64 sites. One such reform is adopting a policy of affirmative or "active" consent. Summarized nicely by the New York Times:
SUNY's approach resembles that recently set by California, by defining consent as an affirmative act, in which both partners must express their desire to engage in each sexual act. Previous consent is not sufficient, and people who are physically helpless, mentally incapacitated or asleep are considered unable to consent at all. [...] Consent need not be verbal, but it must be unambiguous and mutual.
Let's be clear: This is a law mandating a school policy, not a law mandating active consent. The most apt comparison I've seen drawn is by commentor "Kali" on this NPR article about the recent changes in California:
It's kind of like how cheating on a test can get you expelled, but unless you hacked into something or burgled someone to cheat, you aren't going to be prosecuted, you're just going to be kicked out.
This means that unless an assault also meets the criminal criteria for rape, it will not be prosecuted at the criminal level, but only within the confines of university's judicial system -- a distinction lost on many, including, unsurprisingly, the New York Post.
While the Post's editorial opinions on social issues are usually not worth acknowledging, they occasionally perfectly condense and encapsulate the entire spectrum of misguided and retrogressive responses that are otherwise diluted across many media, from comment threads to talk radio to kitchen table conversations. And that's when they're worth tackling: when they set up the pins so well that knocking them down provides clarification and instruction on an issue. (Like their progressive views on catcalling.)
In general, I've found that the attitudes of people scoffing at active consent tend to fall into three categories, all touched upon in some way or another in one tone-deaf article by Naomi Schaefer Riley, entitled "'Active consent' is a solution to an exaggerated problem."
These attitudes are:
1. Active consent is stupid because it's unenforceable and does nothing to stop "actual" sexual violence.
2. Active consent is stupid because it's categorizing all sex without active consent as rape and will result in scores of trumped up rape accusations.
3. Active consent is stupid because asking for consent is awkward, you guys!
I could tackle each one of these objections separately, but I'm just going to go for the larger issue here.
What the Post and other detractors from active consent either miss or choose to ignore is that the function of these largely unenforceable policies is to make an unequivocal public statement that sexual violence is unacceptable and that seeking consent is a valued practice in this particular community. In other words, it's a symbolic standard.
Active consent policies exist to change hearts and minds about how we think about sexual boundaries. They are not meant to entrap drunk college students with unfounded rape accusations, which under active consent are no easier to "prove" than before. Nor are they meant to make collegiate sexual encounters even more awkward than they already are, especially since active consent can be simply "a nod of the head" or "moving in closer to the person."
The policy of active consent is a banner, not a barrier. It sends a message that asking for consent is what one should do when engaging in a sexual encounter, even though the intimacy of such encounters and the inevitable he-said-she-said (or pick your pronouns!) nature of any disputes that may arise render these policies fairly toothless. How can anyone prove they asked for or gave consent or not? In most cases, it's impossible, which makes the policy functionally no different than any other policy against sexual assault -- policies which already exist... uncontroversially.
Because it's not like nonconsensual sex was hunky-dory before active consent was on the scene. But what these new initiatives do that past policies don't is erect a different framework for investigating rape and sexual assault allegations and flip the script on conceptualizing who bears the responsibility to prevent sexual assault. Instead of placing the burden of prevention and extrication on victims by asking, "What were you doing to encourage this? Why didn't you say no or fight back?", the active consent mindset prompts university officials, health care workers, campus police, or even other students to ask, "Did you ask permission first? Did s/he say yes?"
That's an enormous reversal, but perhaps one too subtle for many. Asking the latter rather than the former questions of rape and sexual assault victims has always been the better, more enlightened treatment of the situation, but only with the active consent framework does that superior perspective become the gold standard.
Active consent is a paradigm shift, and a positive one at that. "Yes means yes" is a much clearer stance against rape culture and victim blaming than "no means no," which places the onus of preventing or stopping a sexual assault on a party that may be intoxicated, incapacitated or simply just intimidated. Which is never to say that potential victims shouldn't be encouraged to assert themselves, but there is no shortage of suggestions, especially for women, about how we can modify our lives to keep ourselves safe: don't wear revealing clothes, don't be a flirt, don't walk alone, don't get drunk, always check your backseat, take this self-defense class, carry this mace, put this rape whistle on your keychain, wear this roofie-detecting nail polish, or here -- try this barbed female condom!
We love to teach people how to not be victims of sexual violence, but we are spectacularly lousy at teaching people how to not perpetrate sexual violence on others. But establishing active consent policies is one such way. And that's the point that's being missed by those who decry active consent as overkill to, as the Post puts it, "an exaggerated problem" that will affect 1 in 6 American women: Whether any sexual violence is prosecuted as a result or not, implementing policies like this is, for the first time, explicitly teaching the value of seeking consent, which I'll take over being spared a moment of awkwardness in bed any day.