Adopting affirmative consent policies may be all the rage on American campuses, but they don’t in the slightest reflect how people actually have sex, according to two California professors who are researching youth sexuality.
The doctrine of affirmative consent, also called “only yes means yes,” aims to fight sexual assault by defining it much more broadly than in criminal law. In U.S. criminal law, a person commits sexual assault if that person engages in a sexual act with a person who either explicitly refuses consent, or is incapacitated and therefore incapable of expressing consent.
But under affirmative consent, a person commits sexual assault if that person does not receive explicit, verbal, positive consent to each individual sex act. Public colleges in California, Illinois, New York, and Connecticut are required to use an affirmative consent standard when assessing sexual assault, and many other schools do so voluntarily.
Ongoing research suggests these standards are simply branding millions of ordinary people as rapists for their regular sex habits.
“Just because you make it clearer what we expect in terms of consent from a legal or policy standpoint, that doesn’t change the fact that people are limited in their ability to meet those expectations,” San Jose State University professor Jason Laker told Inside Higher Ed. Laker, along with Erica Boas of Santa Clara University, operates the website Consent Stories. The two have interviewed hundreds of young people and have found that almost none of them follow the approach to sex required by affirmative consent.
“‘It just happened.’ That’s what they said hundreds of times in our first round of interviews,” Laker said. Almost none of the people they interview, he said, explicitly ask people if they want to have sex rather than relying on non-verbal cues.
Laker told Inside Higher Ed that affirmative consent policies act like 18-year-old students have been “hatched out of an egg,” without having their own sexual norms taken from wider culture and their own adolescence.
“The answer to this problem, we believe very strongly, is not going to be found in laws and policies, but that’s where 95 percent of the efforts are,” Laker said. “We need to give students the tools to help them communicate in a way that fits their own temperament.”
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