Yes Means Yes: Yes or No?

Oct 16, 2015

Affirmative consent standards are gaining ground as a tactic to identify and prevent sexual assault at universities. Also referred to as “yes means yes” policies, they define consent as a clear, unambiguous and voluntary agreement to engage in sexual activity.

"In Theory" took this entire week to analyze the issue. Some believe the standards go too far, while others say it's not enough.

Joining us for the chat is Kara Eschbach, co-founder and editor in chief of Verily Magazine; and Jacyln Friedman, the editor of "Yes Means Yes: Visions of Female Sexual Power and a World Without Rape" and author of "What You Really Really Want: The Smart Girl's Shame-Free Guide to Sex and Safety."

Get caught up on the affirmative consent issue here.

Hi everyone, and welcome to In Theory's inaugural live chat!  I'm Christine Emba, In Theory's editor (editrix?)

Today we're joined today by Kara Eschbach and Jaclyn Friedman, two of this week's authors.  Ask away! 

Hi everyone! Glad to be here to chat with you today. 

Hi all, thanks for having us!

What role do you think pornography plays in the rape culture on campuses?

Personally, I think this is the biggest problem we have. The sexual scripts that young men have been exposed to--something like 70% of college age men have reported watching at least 30 minutes of porn at least once, and 50% more than once--are from porn, which have zero focus on sexual intimacy (or reality, for that matter).

I think the root problem is lack of sexual education, far before college! If young people got comprehensive pleasure-based sex ed, they'd be a lot less susceptible to the messages in porn. 

How, in a realistic scenario, could a person accused of sexual assault under affirmative consent provide evidence that consent occurred?

That would depend a lot on the details of the case. But the standard is no different than in a kidnapping case - if a defendant wanted to defend against a kidnapping charge by saying that the person agreed to go with them voluntarily, they'd have to convince a judge and jury that was true. Rape is no different. 

I believe "yes means yes" is a great step forward, but in the end, either party can lie about this, no? It may only protect people that were already following the rules. Because the perpetrator can lie and said the victim consented, and vice versa, a person can change his/her mind afterwards and say he/she did not consent. Unless we are planning on videotaping these affirmative consents?

Sure - affirmative consent is not a cure-all for rape! As you say, it's a great step forward. But laws can also change culture. As I said in my column, marital rape used to be both popular and legal. Laws changed that, and the culture followed. That doesn't mean there's no more marital rape. But it makes it a lot harder to get away with, and people are much less likely to think it's ok. 

I just finished reading Jon Krakauer's book "Missoula". (Chatters, if you have not read it, it's about the University of Montana and their local DA failing to prosecute a bunch of rape cases brought by students against football players. The DA claimed there was insufficient evidence, even though there was physical evidence and witnesses.) In each of the cases Krakauer profiled, both the victims and their attackers had been drinking or using drugs. College women have been scolded and victim-blamed for years about drinking to the point of incapacity, but why are we not telling men not to drink? Would those men have been as likely to commit a violent crime if their inhibitions hadn't been lowered? Or did they just think they could get away with it because they were local heroes?

It depends case by case. There's definitely research indicating that some perpetrators introduce alcohol or drugs into a situation to make their target more pliable, or to create plausible deniability. And I'm sure there are also cases where a perpetrator did something while drunk that they would have stopped themselves from doing while sober. What's important is that being drunk or high is not an excuse for hurting someone else. If I punched someone in the face while we were both drunk, I'd be responsible for a felony violent crime. If I hit someone with my car while drunk, ditto. Rape is no different. Here's the message we should be sending: if you can't stop yourself from hurting someone when you get drunk, it's your responsibility to not get that drunk. Period. Whatever your gender. 

Looking at the data of sexual assault instances on campus, there is a statistically significant difference when campuses are dry versus not, so yes, I think we can safely say that if the men also hadn't been drinking it's more likely that they wouldn't have assaulted the women.

That said, I think there is a pervasive problem with blaming women. The reaction to assault, and particularly when alcohol or partying was invovled, is "well why was she there?" I do think this this has a lot to do with thinking that women are responsible for protecting themselves, and in general believing that, well, men can't help their sexual urges. Which is a ridiculous burden to put on women, and not very respectful of men either, tbh.

I appreciated Kara's suggestion for other ways to address sexual assault (besides Yes Means Yes laws). I'm curious what the panel thinks about research that shows that social limits (like prohibitions on overnight guests in dorms) and limits on alcohol on campus could reduce sexual assault. Link here. Thank you.

The problem with social limits is that they can create shame, blame and barriers for reporting for victims. For example, if there was a prohibition on overnight guests, and I snuck someone into my dorm, and that person raped me while I was violating the rules, I would be less likely to report it because I'd fear getting in trouble, or might feel like I'd brought it on myself by doing the "wrong" thing. We see this already with alcohol violations on campuses - students who are drinking when they're hurt are extra reluctant to report if the alcohol rules are strict on campus. And some perpetrators take advantage of this vulnerability on purpose - telling their victims that they'll get in trouble if they report. 

I have to agree with Jaclyn on that--while it is true that sexual assault instances are lower on campus with no-overnight-guests rules, it does make it more difficult to report instances of assault. But in terms of setting a general tone on the campus, I'm actually all for having no-overnight guests. I went to a school with that kind of policy, and even though people violated the rule all the time, it was nice that it wasn't normal to have guys hanging out there, and it always gave me an excuse when I didn't want someone coming in with me, in a "oh, well, you know, there's a no-overnight-guests policy, guess you gotta go home."

It's my understanding that "yes means yes" provisions are confined to college campus codes of conduct---for now. Is this a standard we would want in our criminal law?

That's certainly up for debate.  In fact, earlier this week Harvard Law professor Alan Dershowitz pointed out that 'yes means yes' standards could erode some of the notions of justice that underlie our current legal system -- innocent until proven guilty, etc. 

One of the reasons why affirmative consent hasn't made it far off of campuses is that most campus justice systems ask for a lower standard of proof when seeking to prosecute sexual assault cases -- preponderance of the evidence vs. reasonable doubt in real trials.  I'm not a lawyer, but it does seem that it would be much harder to find court-acceptable evidence for instances of affirmative consent being given or not, which would make it a messy provision for criminal cases. So yes, that might well prevent justice from being served in a timely manner.  

I agree that there's a lot to think about when considering applying affirmative consent laws more broadly across the US. But Canada has had affirmative consent as the law of the land. I also think it's not materially different than kidnapping cases - if a victim claims she didn't consent to go with someone, and a defendant wants to prove that she went voluntarily, the defendant would have to make that case to the judge and jury. Affirmative consent doesn't have to change the burden of proof. It just changes whether we assume the people we're having sex with are in a state of already-consenting, or whether they're in a state of not-consenting until we find out otherwise. We don't assume that someone we're talking with will consent to going with us somewhere. We ask, we don't just drag them off. We already practice affirmative consent in most other parts of our social lives. 

This critic (linked here) points out that Yes Means Yes laws "lump together the experiences of those who are forcibly raped with those who have drunk sex or those who simply have sex without awkwardly verbally consenting every couple minutes" and thereby trivializes rape. How would panelists respond to this? Is it troubling to differentiate one type of sexual assault (forcible rape) from other sexual encounters? Or is it necessary in order to find targeted solutions to two distinct problems? Clearly, someone who has the intention of raping a young woman will not be stopped by an affirmative consent law because rapist do not care whether their victim is consenting or not.  

Most laws and campus codes do differentiate between "levels" of sexual violation. The fact that affirmative consent is the standard doesn't negate those levels. That said, "forcible" should never be the standard for rape. Most rapes are committed by perpetrators who know their victims, and often use alcohol or drugs, coercion, or other means, not force. That doesn't make the violation any less traumatic, nor does it make rape just "drunk sex." Calling it that is what's actually trivializing. 

Will affirmative consent take the Eros out of sex?

Hardly! Being really present for and paying attention to your partner can be highly erotic. So can talking during sex. Plus, it's hardly sexy to have sex with someone who's not into it, or not paying attention. Affirmative consent, in my experience, has made sex a LOT sexier. 

Does California's law mandating a Yes means Yes standard set a dangerous legal precedent which could lead to wrongful convictions resulting from spiteful or regretful partners?

Well, it's important to note that California's law technically mandates that a Yes means Yes standard be used in adjudicating sexual assault claims on campuses only. It doesn't extend to the whole criminal justice system. 

But it is true that even at colleges, vengeful sweethearts could be a concern. That said, false rape accusations are fairly rare. Most studies show something between 2 -10% at the very upper end (scroll down!).  The barriers to lodging and pursuing a rape accusation are pretty high, high enough that even most real sexual assaults go unreported.  And of those, a large percentage end in no conviction.  I suppose it's possible that a revenge-based wrongful conviction could slip in, but it seems a low-probability result. 

What does it take to change the culture around consent to a "yes means yes" norm? What strategies and analogues apply?

I think we're already in the middle of seeing it happen! When I started talking with students about "Yes Means Yes" seven years ago, barely any of them had ever heard of the idea. Now many or most of them have, depending on the school. And the Washington Post/Kaiser poll from earlier this year shows they're really starting to understand it, too. 

As for analogues, I think we can look at things like MADD (Mothers Against Drunk Driving), the campaign that made it taboo (and much more rare) to drink and drive. Or even the moves to make "no means no" a near-universally understood standard decades ago - that didn't happen by itself. Culture change takes time and take many strategies. Changing laws, great messaging, word of mouth, and also just time for people to think about it and try it on. 

I generally advocate for "Yes Means Yes" as a PR campaign rather than a legal solution because, as you point out, it has to be the cultural norms that change if we want to see a shift. And I do think that changing the idea of what is sexy is to have two willing, fully consenting partners, rather than just "getting some", would be much better for women, and for men.

While MADD is a good example, the reason I used the anti-smoking campaigns example in my article is that smoking had a similar "cool" factor that sexualization currently has in our culture. I think a huge part of what is going to make a big difference is to reduce the constantly pornified scripts men are being fed. It is everywhere. If young men equate being cool and manly with the number of sexual partners they have, and the scripts they're being fed in pornography are violent or showing that women enjoy violent/forced sex, that's what you're going to get. Raising awareness of this, as many are now, as well as providing legitimate alternatives (e.g. popular culture that is high quality but not as sexualized) is the only path I really see forward.

Considering that, in the real world, many people meet while drinking, and have sex afterward: how does this square with the notion that an individual cannot give consent while drunk?

There's a big difference between having a few drinks and being incapacitated by alcohol. There's no problem with having sex after you've had a couple. But if someone is very drunk, they're not capable of consenting. The key is to err on the side of caution: if you can't tell if you're too drunk to pay attention to your partner, or if your partner is too drunk to meaningfully consent, wait until you're both a little more sober. What's more important - having some drunk "sex," or not risking profoundly hurting another human being? Seems like an easy choice to me. 

As long as people are acting on the pleasure principle, that is each partner is in it for their own pleasure as the highest good, don't you think that the same problems of ignoring consent will exist?

Yes, I do think that having sex when someone places their own pleasure above the safety of their partner is dangerous, and sometimes results in real harm! We really need a profound shift from thinking about sex as something you "get" or "take" from someone (and often something that women "give up"), into a creative-collaborative exchange, much like two musicians jamming together. This is a great video explaining that idea. Bonus: when you pay attention to your partners needs, you both have better sex, too!

Is kidnapping a person really analogous to having sex with them? I've seen this analogy referenced repeatedly. I would think that a no means no standard does recognize that it is not. Most sexual encounters are not rape, including most sexual encounters between acquaintances, most drunk sexual encounters. Most cases in which people are forcibly confined are, however, kidnapping. The presumptions should be different because the factual scenarios underlying the two types of allegations are different. The presumption that sex is nonconsensual until proven otherwise is sex-negative and treats the basic sexual act as a type of violence. We do not use the equivalent of an affirmative consent standard for most crimes (or campus code violations).

I don't think you've constructed your analogy right. ALL cases of people being forcibly confined are kidnapping, just as ALL cases of people being forcibly sexually violated are rape. The difference between rape and sex is the difference between inviting someone come back to your house with you and them going willingly, and just grabbing them without asking and dragging them to your house. 

I didn't consent the morning or a couple days after. Happens frequently because they are now embarrassed or slept with another guy to piss off their boyfriends/spouses and now regret it. Its a major problem in the military. And many of these women have a few drinks. When it comes down to it either in court or during the investigation they admit they did consent but no they ruined some guys career.

False reports of rape are actually quite rare, and are in line with the frequency of false reports of other violent crimes. And even when false reports are filed, the majority of them involve no named perpetrator (so, they tend to be a story about how a stranger jumped out of the bushes or some such). So the odds of anyone being falsely named as a perpetrator are really VERY small. Men (and especially men in the military) are much more likely to be victims of rape themselves than they are to be falsely accused. And affirmative consent protects male victims, too. It's not a gendered rule.  

Saying that people are going to falsely accuse someone of a crime doesn't mean that the act they're accusing someone of isn't a crime. I think the issue you're pointing out is more how these laws get enacted and carried out, which I think is a serious concern. As Alan Dershowitz pointed out in his contribution in this series, an assumption of guilt because you have been accused is not the right answer. But to Jaclyn's point, for someone to even bring a rape case forward is a major thing; it's sort of like sexual harassment cases in the workplace--you still have to go through the emotional ordeal of suing your employer, which is no small thing. These laws should be structured with due process and a presumption of innocent until proven guilty. People who want to falsely accuse will be stopped along the way, then.

Why don't you have anyone on this panel from the "due process for accused" side? Having all these feminists certainly gives no credibility to the discussion. It's nothing but a cheerleading crew for affirmative consent. Shame on you!

I guess this is a question for me.

Some due-process guests were invited, but they weren't able to attend.  That said, I think you'll find that some of us are more skeptical of affirmative consent standards than others, and we're all certainly open to due-process questions -- maybe even willing to play devil's advocate if you like. 

Also, I gave up cheerleading after I left primary school!

As a follow up to your above response, Jaclyn, do you think culture more often follows laws or do laws more often follow culture?

I'm not sure! I've seen examples of it happening both ways. I think mostly it's a loop - activists start to bring an idea into the culture, it gains enough steam that it becomes law, and the law further popularizes it. That seems to be what's happening in this case. 

This isn't for me, but just an addition: they are intertwined. I think "Yes Means Yes" as a law contains a lot of legitimate concerns re: due process. But when you look at things like anti-smoking campaigns, that was a combination of cultural influence (e.g. reduction in advertising) and laws like bans on smoking in certain areas and clean air spaces. Personally, I think it's better when it's led by culture and supported by law.

The trickiest part, imo, is how campuses should handle the cases where the appropriate response to a reported assault would be a private apology, a private and far less harsh punishment and perhaps something learned on both sides. Is there a role for campus mediation, and is there any way in which young men who submit to mediation can be protected from at least some of the legal hazards of speaking honestly to their accuser? I fear that the one-size-fits-all way these cases are sometimes handled often ends up scarring both parties needlessly. The young man's reputation is never really cleared, and his efforts to avoid criminal prosecution lead to him accuse the young woman of lying. It's classic lose-lose. Sometimes what the woman wants is simply for the guy to acknowledge his error, apologize and thereby indicate that he learned something and won't repeat his error with someone else.

I believe in giving survivors options. In most cases, survivors don't want an apology, they want accountability. But in cases where the survivor prefers mediation, that option should exist. Shorter: it should be up to the survivor of the assault how to pursue justice. Rape is a profound violation of a person's autonomy. Anything we can do to help the victim regain that autonomy is what we should be doing, and it should be up to the person who was harmed how and if they want to pursue justice. 

Unfortunately, Title IX prohibits the use of mediation -- rather than a formal hearing -- to resolve sexual assault cases. But I do think that mediation can be valuable. Rather than allowing lawyers and panelists to run the proceedings, it gives all the affected parties an opportunity to talk to each other, which can be profoundly educational.

That said, Jaclyn does have a point.  I doubt that most people who have been in a situation where they felt sexually violated want to "educate" their aggressor, or spend further time in their company discussing the incident. I'd imagine they'd like to just move on. 

The internet has been hot with the four year old who needed stitches after being attacked by a boy in her class being told by a the man at the hospital reception desk 'I bet he liked you'. I'm not sure exactly what my question is here - but how do move past this? How do we teach our children differently when these messages are still prevalent and often insidious. How do talk to people say it's in the biology or act like it's not a big deal?

I think your question is also a big part of the answer. Recently, the CDC analyzed existing sexual-assault prevention programs, and found that the only curricula found to have an impact were ones taught in middle school. We have to start much earlier with young people teaching them that our rights and desires end where someone else's body begins. This essay by my colleague Thomas MacAulay Millar is a great read on the subject.

As for the "biology" argument, the most important thing to know is that humans are incredibly adaptable. If we weren't we wouldn't have lasted so long! I don't actually believe that the "instinct" to hurt women exists, but if it did, we are not beholden to our instincts. We can and do evolve. 

Time flies when you're having... substantive discussions about sexual assault!  But it looks like we've got to head out. 


Thanks everyone for joining us, and special thanks again to Jaclyn and Kara.  See you next week, when we'll be discussing One Person, One Vote (!) 

Thanks for having us! 

Thanks for the great conversation, everyone! I'm glad that so many of us are engaged in this issue. If you're looking for an easy way to get the basics across, or still not sure you understand affirmative consent, I'll leave you with this great video about tea. Wishing you all safe and happy sex lives!

In This Chat
Christine Emba
Christine Emba is editor of The Washington Post's "In Theory" blog.
Kara Eschbach
Kara Eschbach is co-founder and editor in chief of Verily Magazine, a women’s fashion and lifestyle website that’s "less of who you should be, more of who you are." Their mission is to empower and inspire women to be the best versions of themselves.
Jaclyn Friedman
Jaclyn Friedman the editor of "Yes Means Yes: Visions of Female Sexual Power and a World Without Rape" and author of "What You Really Really Want: The Smart Girl's Shame-Free Guide to Sex and Safety."
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