You’re in a safe space, Construct, you can tell us…you’re really Rorschach, right?
"Yes means yes"is a silly name. Why not “no means no”?
This was already covered upthread. It’s a conceptual change. “No means no” assumes that the default state is consent, that it’s okay to proceed as long as the other person hasn’t said no – implicitly saying silence means yes. It’s this attitude which allows a guy to argue “well, she didn’t say no” when he’s a foot taller, outweighs her by 50 pounds, and had her backed against a wall.
“Yes means yes” assumes consent must be actively and freely granted, there is no default state of consent, and you can’t assume consent without that yes. Silence means no, so you need to ask for consent or keep your hands to yourself.
I really don’t get why people think affirmative consent will ruin sex. First of all, you’d think that having absolute reassurance that you’re not committing a crime would make things more enjoyable. Also, dirty talk like “Do you like that? Do you want more? Want me to do X?” is HOT. Some of the best moments of early dating for me has been the guy giving me a coy smile and telling me “I really want to kiss you.”
Top idea, particularly if it includes instructions and/or specific examples. 
Pics or it didn’t happen.
I’m not arguing against the law, but I can envision the arguments against you fairly easily.
Firstly, I don’t think that the issue is that affirmative consent will “ruin” sex. It’s just that it’s not how humans interact in their personal lives (ignoring your example of dirty talk, which I will come back to). When you tell people do something that seems unnatural, sure they might adapt and it becomes a new second nature, but it’s just as likely that they’ll ignore it.
When you’re in the mood and you’re both casting sexy signals back and forth, having to shut all that down and say, “Excuse me, but may I fondle your genitalia?”, in a loophole-free, legally binding, clear and concise manner is just too far a leap for someone’s brain to make in that situation. And that’s where people’s minds liable to go when told that they need to ask permission; not to “let’s make dirty talk”.
Dirty talk exists for when you know what the answer is, already. If you’re using dirty talk to find out the limits of someone that you don’t know, it’s probably just going to backfire. “Do you want me to lick your anus?” “WHAT? GO AWAY CREEP!” That’s what you get for asking when you don’t know the answer. When you’re using body language though, you could start to maneuver to said anus and, if she doesn’t seem to be going for it, you can back off and do something else, making a note to not try that again. Plausible deniability. You don’t get that when you have to word an explicit request.
Now, just like it’s possible that people could get used to asking questions, their partners could get used to answering questions in the negative without getting creeped out. But right now, in the early stages of dating, people have no concept of “I’m asking because the subject came up and I’m open to whatever, pro or con.” If you hint that the possibility of X is available, and they don’t like X, the relationship is over.
So then let’s say that, because of all of this, people don’t ask for approval. Well then suddenly, every single college student (presumably both male and female, since the law would seem to require the consent of both parties) is a criminal.
The other aspect of this is that some people may not be comfortable giving explicit verbal consent to requests for various activities, even if they actually do want that activity to happen. IOW, activities that would result in mutual satisfaction if pursued with implicit/nonverbal consent might not happen at all if explicit verbal consent is a legally mandated prerequisite.
You’re not quite agreeing with what I meant. It’s my fault that I was unclear. What I mean is that the idea of affirmative consent doens’t have to require verbal consent. Nor does it necessarily require asking the entire way. It doens’t have to be as bad as these colleges seem to be implementing it.
They are treating it like a legal change, not a perceptual change. The perceptual change is that you sorta “ask” even in your body language, rather than “take.” Put out feelers and see if they are reciprocated. Move forward, but then pull back to see if there is a response.
Don’t see it as “I get to do whatever I want until she says no.” See it as “I’m giving you an opportunity–do you want to come along.”
If you go verbal only, you get into ridiculousness. You get someone actively participating in sex who can then claim they didn’t consent.
Instead, I see it as saying that your partner does not have to actively stop you in order for it not to be okay. That’s the sea change.
It’s really always been true, but it’s not a message that has been promoted.
There is no requirement for explicit verbal consent.
And this law has nothing to do with criminal prosecutions for sexual assault whatsoever. The law requires that New York colleges have an affirmative consent standard for internal disciplinary purposes only.
Is he awake?
And how do you think “I didn’t ask, but I deduced from her body language that she was consenting” is going to fly against a “I didn’t say anything, but I wasn’t consenting”?
How do you establish that consent is certain without it being made explicit verbally? What exactly is the body language equivalent of an explicit yes that is likely to satisfy a disciplinary comitee?
With a “yes means yes” policy, is there a margin of error for honest mistakes in the absence of explicit verbal consent? If not, then explicit verbal consent is actually required, despite the text stating it isn’t in theory.
And as I wrote in the other thread, either you think it’s a bad policy, and then it shouldn’t be used for disciplinary purpose in colleges, or you think it’s a good policy and you should support it being implemented everywhere by everybody, including by you every time you have sex.
IMO people who may feel uncomfortable giving affirmative consent really should see this change in vision as an opportunity for empowerment. Letting the other person take the initiative may sound romantic but it’s an unfair burden on the other.
Part of the issue as I see it, is people assuming that college administrators will be too lazy or cowardly (in the face of their legal counsel going OMG OMG OMG WE’RE GONNA GET SUED AND SUED AND SUED) to make proper evaluations and judgements and will go into an expel first, ask questions (but only such that do not cast doubt on the alleged victims) later, mode. Have institutions really lost so much trust?
How do you think “I asked, and she said yes” is going to fly against “he didn’t ask, but I wasn’t consenting” absent an affirmative consent policy? It’s exactly the same dilemma. Your problem is just with the very idea of an evidentiary proceeding, not with this law, if you think that the law shouldn’t exist as long as it’s possible for there to be uncertainty.
And yes, there is a margin of error. The idea of affirmative consent isn’t terribly complicated, really. At any particular point in an interaction between two people, imagine you’re stopping time, and then ask whether at that point it’s reasonable to believe person A has clearly indicated a desire to do activity S, whether verbally or not. If it isn’t reasonable, then person B is in trouble if person B goes right on ahead with activity S. If it is reasonable, and person A later complains about a violation of the affirmative consent policy, then person B has to say well, here’s what was going on in that freeze frame, and here’s how I reasonably determined that person A had clearly indicated desire to do activity S.
Does that not sound like the way reasonable and decent people get down when it comes to activity S?
Although in the first example there was agreement on both parties that there had been no explicit communication, instead there were only nonverbal “signals” that each interpreted differently; while in yours, one of the parties says there WAS a communication and was affirmative, and the other party denies the question was even asked. Different things to prove in the evidentiary process.
But yes, it does go to my comment that much of the fear/concern is that the process will be implemented with a very heavy weight of presumption in favor of the complainant.
clairobscur seems to be suggesting that there’s something especially certain about asserting that consent was verbal. But once you’re at a hearing, all it takes is for the other person to say “nuh-uh.” It’s the same dilemma whether the law requires affirmative consent or not. If the complaining party is going to lie to get the other person kicked out of school, they’re obviously going to falsely allege whatever is required to make out a violation of the policy.
No, it’s very different. If you asked, you’re certain that you got consent, while if you didn’t you can’t be so certain. If you didn’t ask, you could be perfectly honest and truthful and still be in the wrong. If you report truthfully what happened and your partner states that she wasn’t in fact consenting, I’m pretty certain that the hearing body isn’t going to tell you : “Ok, trying to read her body language is good enough, you’re in the clear”. They will tell you “Obviously, you were wrong. You should have made really sure she was consenting, not have relied on vague guesses. In fact, what didn’t you ask? Could it be that in truth you suspected she would say no?”. If you ask, you can’t be mistaken barring unlikely circumstances, and you won’t be sanctioned, because what more could you do than requesting a clear verbal consent?
And besides, your identical scenario isn’t identical : it requires your partner to lie for an issue to exists. If you actually asked, you won’t be sanctioned for it unless your partner is acting in bad faith. While you could very well be in the first scenario even when both partners are truthful.
And for people who will undoubtfully think that if there’s a margin for error, then you should indeed ask, I will reiterate my certainty that they don’t apply such strict rules to themselves. Like the college student, they’re just assuming their partner is consenting to such or such act, or at the very least that if it happens they will be able to sort out the issue with their partner without it ending in a disciplinary hearing or in a court of law. Which is roughly similar to “I don’t care if terrorists can be detained without due process, since I’m not a terrorist so there’s no chance it will ever happen to me”.
That’s a concern, but the issue I have is much more basic than that. The “yes means yes” policy as written requires from people things that nobody has ever done, nobody is currently doing, and nobody is ever going to do. It makes everybody who had, has or will have sex guilty. And if it were to become a legal requirement, it would make a criminal of everybody who has sex. If at the contrary it’s merely the morally right thing to do, then everybody is morally bankrupt.
It’s not just that the enquiring body might be biased. It’s that even if it’s not biased, it should logically find in favor of the accuser essentially every single time unless the accused actually asked before each act, or lies about having asked. If your partner is really pissed that you touched him inapropriately, what could you say? If you didn’t ask before touching his buttocks, you’re indeed in the wrong, regardless how innocent your intent was, how many times he didn’t object to have his buttocks touched, and how sure you were that he would want you to touch his buttocks.
No, that’s not what people do.
Let’s assume that your last sexual partner (who we’ll assume is female) complains to me that she felt violated the second time you touched her breast during the first intercourse you had in April. Can you freeze the frame and tell me what made you reasonably convinced she was consenting to this act at this moment? I strongly doubt it. But regardless how unlikely such an issue seems to you, if you can’t, you’re in the wrong according to this policy.
Let’s make it simpler : the first time you touched her genitals during your last intercourse, that you’re much more likely to remember. We’re assuming that she really felt violated but that she won’t lie deliberatly about what happened. So, could you give me enough details, and convincing enough details, that I will believe that despite her stated reluctance, any reasonable individual would have assumed that in this specific instance (I touch her genitals twenty times a week and she never complains won’t fly, since past consent doesn’t equate present consent) she was affirmatively consenting, in short that it was the equivalent of a verbal “yes”.?
I again doubt it unless she happened to put your hand on her genitals herself or asked you to touch her genitals. What specific steps did you take to make sure she was consenting? Did you stop to consider whether she was very clearly consenting before touching her? If not, weren’t you simply assuming consent? Did you look at her facial expression before touching her? If not, why not? What exactly made you so sure she wanted you to touch her before you did? Any statement about her body language is likely to be subjective and doubtful, and unless you have a very good memory, imprecise too. Most certainly not the equivalent of an affirmative consent. Your belief that you didn’t violate her is very probably based on previous experiences with her, and on her not mentioning that she was uncomfortable rather than on having made sure she was positively consenting (verbally or not) before you acted.
That’s assuming you even remember how it happened. Personnally, I don’t wrt my own last intercourse. I remember where we were, roughly what kind of things happened, more or less what was her and my general state of mind, but I would be unable to justify my belief in her consent wrt any specific act that she would suddenly say had hurt her. I would possibly not even remember the specific act itself. I couldn’t in any case truthfully give enough details to qualify as having made sure beforehand that she was affirmatively consenting to the satisfaction of an outside observer who doesn’t know us.
I “know” she was consenting, I “know” her well enough to know whether she’s consenting or not, but that’s totally subjective, and there’s no way my feelings would convince you if she was complaining and you had to decide whether or not I reasonably believed she was affirmatively consenting to this particular act on this particular day. And instead of being someone I know, it could have been casual sex. How could I convince you I was reasonably believing a perfect stranger I met one hour before was affirmatively consenting to a given act if I didn’t specifically ask?
And I didn’t even mention the case when our partner would be deliberatly lying.
People who disapprove of this: is it your position that, when Sam does sex things to Robin when Robin has not overtly or affirmatively consented, Sam has not raped Robin, or Sam should not be punished for raping Robin? Is this a legal argument or an ethical one?
I have personal knowledge that isn’t so, unless you’re claiming that “obtaining consent” means something like “ceasing all contact until a specific verbal formula has been uttered.”
Hm. One solution might be to have people making these judgements, rather than Disciplinebot 9000 which, not having a human body, knows not this “body language” that the accused might cite.
Well, yes, if you touch someone’s body in a way you did not have permission to, you are in the wrong.
Also, you seem to be trying to tapinose the idea that a man might be deemed a rape victim under this standard. Except men actually are entitled to bodily autonomy; however improbable you think it is that a man would object to something sexual (and you’re likely underestimating), if he does, his partner actually is ethically if not legally obligated to respect that.
Doesn’t anyone moan, “Oh, yeahhhh” or “oh god yes” anymore?
That’s affirmative consent.
(Obviously, IANAL, but it would be a pretty good defense.)