Analysis, suggestions, legalese, and opinion about “No means no”—and also about “Yes means yes”–have been flying off newspaper sites this month.
“No means no” hasn’t been as effective as college students have thought it might be. “Yes means yes” isn’t perfect either, but it covers additional territory. Because consent would have to be voluntary, not saying anything could not be construed as “Yes.” The proposed law covers dating violence as well as stalking, and it includes faculty and staff as well as students.To view the entire text, click here.
Philosophical differences about the right approach nonetheless have an important element in common. Sex takes two and no one gets to make that decision for both. Nicknamed the “Yes means yes” law, the bill has passed the California legislature, and Governor Edmund “Jerry” Brown has until September 30 to sign it.
California would be the first state to respond to the recent investigation of sexual assaults on college campus by proposing not just new ideas, but a new law. Affirmative consent would be the basis for consensual sex, not just the absence of a “no.” What’s more, college students who attend universities that provide financial aid would be required to recognize that and also to agree to investigations of sexual assaults. Part of the text of the bill:
“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
Gloria Steinem, noted feminist writer and media expert, and co-author sociology and gender studies professor Michael Kimmel believe “Yes means yes” demonstrates parallels to, for instance, property laws better than “No means no.” Their New York Times op-ed piece begins this way:
“Suppose someone you know slightly arrives at your home, baggage and all, and just barges in and stays overnight. When you protest, the response is, “Well, you didn’t say no.”
One ongoing issue concerning the analogy to property, though: Women sometimes argue that they shouldn’t be limited or have to take special care to prevent sexual assault. The social norms surrounding rape need to be challenged instead, they remind us. That may not entirely match their realism in other situations, though, involving their property. Most likely, they wouldn’t leave a car key in the ignition of an unlocked car or credit cards in a desk drawer.
Besides, protecting themselves doesn’t diminish the burden of others not to commit crime. It runs parallel to it. Ideas for discouraging unwanted sexual advances have been collected by Jane Stapleton, a University of New Hampshire researcher and workshop leader. They range from spilling a drink as a distraction to having a friend who will come by with “Here’s the tampon you asked for.” And a nail polish has been invented by four male students at North Carolina State University that changes color when in contact with date-rape drugs that might be put in a drink.
“Who should say what” cuts both ways. When I was on the Speakers Bureau at Planned Parenthood in the 1970’s, I spoke by invitation to school and community groups about contraception. More than once someone in a group would say quite sincerely, “But I don’t know him well enough to talk about that with him.” The room usually went silent for a moment, everyone thinking the same thing: “So do you know him well enough to have sex with him?”
Then there are other-than-just-college-situations where sex is deliberately used to control. Enslavement and human trafficking, both crimes around the globe, make the news every day, it seems. And from families that famously prohibit even hand-holding until engagement to mature relationships based on monogamy to traditional marriages, there are variations on the what-is-okay theme within the same general culture.
The new California standard attempts to take difficult issues into consideration even if it isn’t perfect, even specifically stating that just because a woman and man have had previous sexual relations together, that doesn’t constitute an automatic “Yes” the next time. Within the divergent meanings that sex has individually, culturally, and legally, “Yes means yes” demonstrates an important similarity. It takes two to tango, and no one gets to decide for both.
Linda Chalmer Zemel teaches in the Communication Department at SUNY Buffalo State College. She also writes the Buffalo Books column.
Contact Linda at firstname.lastname@example.org