We are on the brink of a "Yes Means Yes" revolution. In the fall, California governor Jerry Brown signed legislation requiring colleges in the state to adopt sexual assault policies demanding "affirmative, unambiguous, and conscious" consent throughout any sexual encounter. "No Means No" isn't enough anymore. We know now that in assault situations there can be an absence of a no for a variety of reasons, among them shock, fear, and incapacitation. The affirmative consent -- or "Yes Means Yes" -- standard says that both parties need to clearly agree before and during to proceed with a sexual act; that consent for sex has to be explicit.
Sounds unimpeachable, right? Not so fast.
Though California is the first state to write Yes Means Yes into actual law (with more poised to follow soon, including New York), hundreds of colleges have already adopted Yes Means Yes policies on their campuses as a way to help curtail what has become a nationwide campus rape epidemic. Many argue that Yes Means Yes will help shift the burden of proof from those accusing to the accused, alter expectations about what consensual sex looks like, and eliminate any instances of "gray rape," often described as "sex that falls somewhere between consent and denial." Requiring both parties to verbally consent to sex is meant to eliminate confusion, once and for all. If one party is incapable of saying yes, due to drugs or alcohol or anything else, there is no consent. "Lack of protest or resistance does not mean consent," the bill reads, "nor does silence mean consent."
But while the intent of Yes Means Yes is admirable -- and certainly more communication about and around sex is not a bad thing -- government seeking to regulate sex, or any other act, on such a micro level is a symptom of a culture marked by extreme over-parenting -- and it is dangerously enabling.
Rape on campus is a terrible problem. But it's not one that can be solved by making the laws more specific or by trying to strong-arm communication, the lack of which is not at the root of most sexual assault. If a student requires a law to know that a woman must be conscious--or even unambiguously interested--in order for sex with her to be consensual, there are other problems at hand. In fact, hand holding is exactly the problem. Yes Means Yes is just another way to helicopter parent -- and by the time kids get to their college dorm rooms, by the time their clothes are off, it's time for the hovering to stop.
Instead of prolonged hand holding, we need to do a better job teaching kids about sex, and human decency, and what "no" sounds -- and looks -- like. Otherwise, a culture of affirmative consent may, in fact, set up a system in which the lack of general good sense, or goodness, can be excused if there is not a law very explicitly and precisely banning such behavior. Take, for example, stealing. Establishing a law that requires someone to say, "yes, you may take my wallet" in order to clearly and unambiguously distinguish stealing from borrowing isn't going to reduce the incidence of theft. Addressing the root of the theft--what's causing people to steal--is what will help reduce theft. And so it goes with rape.
Affirmative consent doesn't actually require verbal consent, which leaves open the room for the sort of ambiguity that most colleges struggle with in the first place. That said, the problem on college campuses isn't actually with how to define consent. Many assaulters are drunk, or have been conditioned by society to believe that if they keep pressing, the no may turn into a yes. They do not know what a healthy sexual interaction looks like, because many schools refuse to teach anything but abstinence. They do not know how to think for themselves, because they have been raised by parents who do that for them. "No Means No" didn't work because this is a generation that does not know what "no" means; they have, after all, heard it so infrequently.
That's why Yes Means Yes won't work. The problem at hand isn't with the law. It's with the people.