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Commentary: Maryland ponders dangerous ‘affirmative consent’ proposal

By   /   February 14, 2017  /   No Comments

Creative Commons / User Cezarrazek

AFFIRMATIVE CONSENT: Policies that define nearly all sex as rape are misguided and dangerous.

We all think sex between two (or more) people should be consensual, but the new ways in which lawmakers and schools are defining consent are dangerous, and Maryland may be the next state that muddies the waters.

Affirmative consent laws, sometimes referred to as “yes means yes,” are intended to flip the script on the long-taught “no means no.” Until a few years ago, we were taught that engaging in sexual activity with someone who said “no” constituted rape or sexual assault. Now, engaging in sexual activity with someone who doesn’t sufficiently say “yes” is considered rape or sexual assault.

One can see immediately the problems with this new narrative. The definition of consent that Maryland lawmakers want to use defines it as “clear, unambiguous, knowing, informed and voluntary agreement between all participants to engage in each act within the course of sexual activity.” That’s a lot of words to describe “agreement” that don’t really explain what consent means.

For instance, “unambiguous” is, well, awfully ambiguous, because what one person finds unambiguous might not be what another person finds unambiguous. Consent is more subjective than affirmative consent laws would have one believe. A man might believe he obtained unambiguous consent from the way a woman acts, but he could just be misreading signals.

And those who have tried to teach affirmative consent by suggesting sexual partners constantly ask each other if they’re still consenting have often bumped into reality.

In a 2015 article, the New York Times’ Jennifer Medina attempted to report on a sexual education class in California that taught affirmative consent. One student asked the instructor if it means sexual partners “have to say ‘yes’ every 10 minutes,” to which the instructor replied: “Pretty much.” She added that “It’s not a timing thing, but whoever initiates things to another level has to ask.”

That’s never how it works in practice. In schools where affirmative consent is the standard, the person responsible for obtaining consent has always been the person being accused of sexual assault. In other words, responsibility for obtaining consent, contrary to what affirmative consent policies state, retroactively falls on the accused (who is almost always a man).

Maryland is now considering teaching this standard to high school students. The legislation was introduced by Dels. Ariana B. Kelly and Marice Morales, both Democrats.

Affirmative consent policies, rather than making consent clearer, have actually made it nearly impossible to have a truly consensual sexual encounter.

If each person is responsible for asking for consent before moving to the next level, then sexual activity becomes a question-and-answer session where both sides are constantly asking “May I kiss you here?” “May I touch you there?” and responding to the affirmative. And once an act begins, the partners would have to constantly keep asking whether they still had consent.

It’s safe to say that almost no one has ever had sex this way.

And so, one accused of sexual assault has no true way to defend himself (or, in rare cases, herself) against an accusation, and proponents have answered no questions on the matter. How can an accused student convince anyone they have unambiguous consent when the accuser says they didn’t? An accuser just has to say she was too drunk to consent, or say he didn’t ask for consent for every single act (he may have asked to kiss her, touch her, or have sex with her, but if he didn’t specifically ask for oral sex, he could be accused of assault).

And then there are the instances where “yes” doesn’t even mean “yes,” because an accuser just has to say he or she was too scared to leave or say “no.”

A better alternative would be to encourage conversations between sexual partners, but not to punish people so easily for ambiguous sexual encounters.