COUNTERPOINT: Idealized standards of consent are not realistic
Shauli Bar-On | Daily Trojan
This past weekend, over 4 million people worldwide took to the streets in demonstration for the annual Women’s March. The first women’s march took place last January after President Donald Trump’s first day in office. The 2018 march was propelled in great part due to the #MeToo movement, which raises awareness about sexual assault and drives the fight to end it.
Sexual assault, specifically as it pertains to college campuses, is not a new issue. In 2014, California became the first state to issue an “affirmative consent” or “yes means yes” standard to protect victims of abuse and sexual assault. The new standard now dictates that any sexual action should be considered unwilling unless an affirmative “yes” is given by both parties. Previously, parties could imply consent and unwanted advances would only be identified when one party would say “no.” At the time, the new standard was a novel approach to tackle a serious issue. But a few years down the road, it became clear we did not know exactly what we were signing up for.
Before we can go on to critique the “yes means yes” standard, it is necessary to identify the root of the problem: It is an impossible standard to implement given current norms. The USC Code of Student Misconduct, drafted analogous to the California legislature’s, defines consent as a “positive cooperation in act and attitude made with knowledge and agreement to the nature of the act.” This is a vague description of what it takes for one party to agree to intimacy.
Does consent have to be verbal, or can it just be implied? What about mere “positive cooperation?”
Due to the rule’s ambiguity, it becomes almost impossible to put it into practice. In a case of alleged sexual assault, does the burden to prove consent fall on the alleged assaulter, or does the burden fall on the complaining party to prove that no consent was actually given?
Art by Di Wu | Daily Trojan
To further complicate the matter, the USC code also dictates that “lack of protest or resistance does not mean consent, nor does silence mean consent.” Does this mean that college students are expected to distinguish between “positive cooperation” and “lack of protest?” Ideally, yes. But there is a dangerous lack of education for students to understand how to identify which is which. If we want the standard to be followed, we need to be educated about identifying consent.
Believing that a verbal “yes” is given before each and every sexual encounter ignores reality. The USC Code of Student Misconduct stipulates that, “consent cannot be inferred from an existing or previous dating relationship. Previous sexual activity between the parties cannot, by itself, be assumed to be an indicator of consent.”
This wording poses numerous problems. The USC Code and California standard suggest that without such an affirmative “yes,” each and every time a couple — no matter how long they have been dating — are intimate, they are engaging in sexual misconduct. Therefore, according to this, long-term couples who imply consent without a verbal “yes” each time they are intimate, are committing sexual assault.
The implication of “yes” becomes a “no” if only one partner takes that position. In other words, this is the old “no means no” standard in action. If we do not uphold the law for one case, how can we uphold it for other cases? Do we uphold the law only when someone complains? Where do we draw the line?
The “yes means yes” standard functions poorly between first-time partners as well. First-time partners do not seek a “yes” every time they engage in intimacy. According to the law, they should. The next focus needs to be on implementation, on teaching the new generation about this standard. Only by ingraining the idea of affirmative consent into our culture can it be effectively used.
A change in the statutes means nothing unless it is understood by those who are obligated to follow it. A rewriting of the law does not change a culture — only knowledge and education can do that.
Shauli Bar-On is a freshman majoring in political science. “Point/Counterpoint” runs Wednesdays.
“Do you want to have sex?” “Yes,” it’s that simple. And a couple in a relationship that has sex without this conversation is not automatically participating in sexual assault — assault can happen in relationships, and this rule dictates that a complaint of the sort be taken seriously, not that the parties be automatically convicted. Bar-On I hope you do some research and read these comments.
Hi Shauli,
First of all, thank you for publishing such an article with your true opinions on the issues of sexual assault and consent. Without people like you revealing how they might feel internally about problems that congregate our society today, we may never be able to change public opinion and educate the majority.
That being said, I will now take the time to explain why your views are problematic and pose a couple of questions that may help both you and me understand what your viewpoint is on all of this. I hope you will be able to consider my response and take it to heart, for this is an important issue for you to understand.
First off, I will address your point about how the “yes means yes” standard is an “impossible standard to implement given current norms.” You talk about how it is difficult for an average student to identify the difference between “positive cooperation” and “lack of protest,” and how in order for this to happen, students must be educated about identifying consent.
At this point, I was confused about the rest of your article, since you seem to believe that giving consent, or giving a verbalized “yes”, before every sexual encounter is an idealistic expectation of any given student. However, you state that in order for consent to become a “current norm,” we must focus on educating the public of such. You contradict your own argument.
What are you asking for? What do you suppose people should be educated on, if not the standard of consent to prevent cases of sexual coercion, molestation, and rape? You say that “a change in the statutes means nothing unless it is understood by those who are obligated to follow it.” Does this not call for education about consent, a so-called idealized concept you believe to only be upheld by the “complainers?”
Thank you Justine, well said!
To add to the discussion, either within a new intimate relationship or an aged one the need for verbal consent is not something that dulls or can be ignored. To have healthy, positive sex verbal consent is necessary. Understanding your partner, ensuring their comfort and them ensuring yours is a terrific and mandatory part of engaging in sex or sexual acts. And it will only increase the connection and pleasure! Furthermore, if our culture is uncomfortable by verbal consent it is upon us as a culture to transform.