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Tuesday, March 01, 2016

“Yes means yes” is not the legal standard

The catchphrase of “affirmative consent” is “yes means yes.”  Journalists and advocates regularly use “yes means yes” as a shorthand for "affirmative consent."  A New York Magazine article referred to “the notion of ‘affirmative consent’” as “every step toward sex being explicitly agreed to with a ‘yes.’”  On Vox, Jenée Desmond-Harris referred to California’s affirmative consent police as “making colleges replace the ‘no means no’ rule with a ‘yes means yes’ one.”

In my ongoing attempt to unpack what “affirmative consent” really means and does not mean, the first step is to be clear that affirmative consent standards do not, in fact, require an express verbal “yes.”  The phrase “yes means yes” may be a helpful slogan for educating students to be proactive in communicating about sex, but it is not the legal standard.  

It is easy enough to require express verbal consent if that’s what you want to do.  You define the offense as “engaging in sexual conduct without express verbal agreement.”  None of the existing affirmative consent standards require this.  All of them recognize that consent can be expressed through words or conduct.

Let’s look at the language:

California state universities: “affirmative, conscious, and voluntary agreement to engage in sexual activity.”  (This is also the definition of “affirmative consent” given by the handy website affirmativeconsent.com).

New York state universities:  “Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.  Consent can be given by words or actions . . . .”

A recent discussion draft of the ALI’s Model Penal Code defines consent as “a person’s positive agreement, communicated by either words or actions, to engage in a specific act of sexual penetration or sexual conduct” (Section 213.0(3) of the ALI MPC Discussion Draft, April 28, 2015) (my understanding is that this discussion draft has been withdrawn, but I believe this is the latest publicly-available proposal, and thus I am using it for discussion purposes).

None of these standards require express verbal agreement, and many explicitly recognize that consent can be given through actions as well as words. 

So “yes means yes” may be a helpful slogan, but it is clearly not the legal standard.

Posted by Jonathan Witmer-Rich on March 1, 2016 at 09:49 AM | Permalink


Instead of trying to nail down what constitutes consent, Texas has chosen to define non-consent in the sexual assault context. Here's how it's defined:

o (1) the actor compels the other person to submit or participate by the use of physical force or violence;
o (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;
o (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
o (4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
o (5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
o (6) the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge;
o (7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
o (8) the actor is a public servant who coerces the other person to submit or participate;
o (9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor;
o (10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser; or
o (11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code.

In each case (unless the victim is incapable, rendered incapable or subject to offender's influence based upon the special status of the offender), Texas seems to require that the victim raise an objection.

Posted by: Non-Prof | Mar 2, 2016 6:29:30 PM

If you want to talk about a new law it behooves you to analyze the similar existing ones. So you should ask: OTHER than rape, what else shares the crucial traits that make rape so hard to deal with? Here they are:

1) most conduct is desirable and legal, and only a small fraction is undesirable/illegal;

2) the disputes usually revolve around consent, knowledge, intent, or lack thereof;

3) the physical evidence is usually minimal, and rarely proves consent/knowledge/intent;

4) prior conduct of the parties is highly relevant, and circumstantial evidence is very valuable;

5) the decision maker is generally charged with distinguishing between "an attempt by the accuser to escape a bad decision," "a miscommunication without fault, even if there was a bad outcome," and "a bad act."

6) one or both sides are often partially or fully impaired judgment due to substance use.

With the exception of #6, I propose "fraud between business partners," or similar actions involving oral contracts. It's a huge area of law with a lot of history. Why not analyze it?

Posted by: EH | Mar 2, 2016 5:20:22 PM

The above seems to make sense until it's given closer scrutiny. I don't think the analogy of the small children is very applicable. The "intention of some sort" is where everything becomes terribly vague. What is the intention? If a guy and girl begin kissing, and then making out, there may be other indications that the guy interprets as consent to go farther, so he goes for second base. She stops him. In other words, he misread her non-verbal signs, and under this policy, has just committed sexual assault. The same applies to a female in she is the first to make an overt sexual move.

Basically, this idea of clear non-verbal communication means in any with non-verbal sexual situation, somebody has to commit sexual assault (someone has to make a first overt sexual action without a previous action signaling consent). And the only thing which determines whether that person is liable to prosecution is their ability to correctly read a person's non-verbal signs.

And I'm sure everybody here has misread a person's non-verbal signs before (even people you know very well).

Posted by: YesterdayIKilledAMammoth | Mar 2, 2016 12:00:47 PM

correction: (...'when one posts their comment...')

Posted by: Patrick S. O'Donnell | Mar 2, 2016 11:35:05 AM

I'm (well) over 50 too, but am deeply disappointed (but, alas, not surprised, particularly when posts their comment under the pseudonym, 'white guy') that someone would contribute to a law blog thread on our topic the propositions that "[w]omen don't want to be asked," or that "every woman desires the male to initiate." It is rather grandiose generalizations of this sort that deserve to be called "absurd."

Posted by: Patrick S. O'Donnell | Mar 2, 2016 11:33:45 AM

Very small children who have yet learned to speak...or those who are mute seem perfectly capable of expressing themselves on matters fairly specific through their actions (e.g., nodding one's head up and down or shaking it back and forth). And certainly one can imagine a dating scenario in which one of the parties, say, after a kiss or hug, begins removing their clothes which, given the context, the prior (including verbal) behavior of the parties (including the nature of the relationship, if there is one) can be understood as more or less expressing an intention of some sort. Much would appear to depend on our descriptive abilities (including how amenable the situation is to phenomenological descriptive details). In any case, the notion of consent here, much like informed consent in medical ethics, appears to assume or presume some notion of rational, moral and/or psychological autonomy (Kantian, Millian, what have you), in which case we might inquire into questions of character, self-mastery, reflective control, second-order desires, and so forth. In other words, even "verbal consent" may not be transparent in meaning. As to the legal implications of this, I'll leave that to the rest of you.

Posted by: Patrick S. O'Donnell | Mar 2, 2016 11:06:51 AM

Absurd. Women don't want to be asked, unless she makes it clear she is not attracted, every woman desires the male to initiate. A hair pull, a feel up, asking for a "yes" is not what women crave. I'm 50 plus and I've seen a lot in the legal world and academia. I've also seen many friends divorce as hubby was not aggressive their wives found another to be dominant ant.

Posted by: whiteguy | Mar 2, 2016 11:04:28 AM

The "words or actions" language seems really good, until we try to figure out how it interacts with language about "specific acts."

It's fairly easy for actions to give rise to a sort of generalized consent, but much harder to see how anything other than words will count as consent to a specific act.

For instance, from Colgate's rule, "For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct." Unless you're going to play charades (not that there's anything wrong with that) it's pretty hard to clearly express anything too specific through actions.

Posted by: Derek Tokaz | Mar 1, 2016 1:42:54 PM

And all of these "actions" are incredibly vague. What action signifies clear and unequivocal consent? What is an action? Can it be a look, a smile, a wink, a nod? Or does it have to be an overt sexual action? Which if it has to be an overt sexual action, then someone's always committing sexual assault since there has to be a first overt sexual move, which is made without a previous overt sexual move signifying consent.

Posted by: YesterdayIKilledAMammoth | Mar 1, 2016 10:39:57 AM

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