What Does "Affirmative Consent" Actually Mean?

When does "yes" mean "yes," and why does it matter?

Posted Jul 31, 2017

What's the difference between saying "No means no" and saying "Yes means yes"? That's not a trick question: It's at the heart of the discussion being held on college campuses and in state legislatures around the country.

It concerns so-called "affirmative consent" laws, which mandate that sexual encounters require those involved to offer unambiguous and voluntary agreement at every stage of increased erotic activity. Most institutions of higher education already have self-imposed regulations in place to deal with sexual misconduct under which perpetrators are penalized in meaningful ways, either by having their privileges curtailed, by expulsion or, in some cases, by having their files turned over to the police and facing criminal charges.

The phrase "affirmative consent" might appear at first glance to be redundant. Is there such a thing as "negative consent"? Yes, indeed there is — and that's why we need consistent, specified and formalized language to make clear what we mean when we're talking about sexual offense, assault and rape.

Negative consent is being incapable, for whatever reason, of making one's own will prevail in a situation.

Want to know why you have to hit the "Agree" button every time you sign up for a newsletter, download an app, finalize a purchase or upgrade your software?

Want to know why most religions ask you to announce publicly and repeatedly your devotion rather than just shrug your shoulders and say "I dunno, maybe, I can't decide"?

Want to know why we still ask for signatures on important documents or, for that matter, on receipts for items costing more than $49.99? Because active consent —-even if it means a few extra steps that might cost them a few adherents — is worth it. They don't want to have entered into an alliance (whether brief and superficial or life-changing and eternal) with a recalcitrant partner.

We have to accept responsibility for our decisions and understand that our actions are based on attentive, positive agreement. Presumably neither Supreme Beings nor software manufacturers (they are not the same) want people to accuse them of being unscrupulous. They don't want to be regarded as bullying, bulldozing or menacing anyone into accepting what's on offer.

So if we want something, we affirmatively agree. And if we haven't agreed and are still treated as if we did, we get furious.

For example, we have laws in place to keep our "Do Not Call" lists up to date because we don't want to feel our privacy is violated. Yet somehow it's an imposition to make sure people ask potential erotic partners for consent before they have sex? I don't think so.

Words matter. When frat boys, as a hazing ritual, are expected to chant "No means yes and yes means anal," as they did at Yale a few years ago, it undermines the credibility of "No."

The same bankrupting of language goes for Rush Limbaugh's 2014 line, "How many of you guys in your own experience with women have learned that 'no' means 'yes' if you know how to spot it?" Limbaugh was mocking Ohio State University's sexual conduct policy, declaring that talking about sex obviously "takes the romance out of everything," and diminishes the art of seduction.

If seduction means the use of manipulation, force or cocktails made from a Bill Cosby recipe to secure the attention of an otherwise uninterested companion, then let's downgrade seduction from an art to a con.

Maybe we'll get closer to an ideal where sexual disingenuousness can be replaced by mutual attraction, reciprocated interest and the possibility of combined pleasure although, naturally, that just might be my wildly feminist way of looking at things. But, as I remember the Beach Boys once singing, wouldn't it be nice?

Finally, we need to make sure that new laws protect everybody; men, as well as women, must be provided with a safe and supportive environment. Neither men nor women should be in danger of becoming victims of violated rights or of actions initiated in anger and done with an intent to harm.

And for the students who don't want talk about sex when they're thinking about having it? You might want to take an English class and study Molly Bloom's loving, affirmative soliloquy at the end of James Joyce's "Ulysses."

Words can become your good — perhaps intimate — friends.