We Require Affirmative Consent For Most Things. Why Not Sex?


Ezra Klein has taken a lot of heat for his defense of California’s new “Yes Means Yes” law, which puts in place an “affirmative consent standard” on university campuses to decide whether a sexual assault has taken place. In other words, the mere lack of a clear “no” is no longer a defense against sexual assault charges. Instead, you have to make sure that your partner has given you a clear “yes.”

Klein defends himself here in exhausting detail. Most of it you’ve probably heard before, but perhaps the most interesting part is this: “More than anything, what changed my mind on Yes Means Yes was this article by Amanda Taub, and some subsequent conversations with women in my life.” Here’s Taub:

When our society treats consent as “everything other than sustained, active, uninterrupted resistance,” that misclassifies a whole range of behavior as sexually inviting. That, in turn, pressures women to avoid such behavior in order to protect themselves from assault.

As a result, certain opportunities are left unavailable to women, while still others are subject to expensive safety precautions, such as not traveling for professional networking unless you can afford your own hotel room. It amounts, essentially, to a tax that is levied exclusively on women. And it sucks.

And here’s Klein:

Every woman I spoke to talked about this tax in the same way: as utterly constant, completely unrelenting. It’s so pervasive that it often goes unmentioned, like gravity. But it colors everything. What you wear. Who you have lunch with. When you can hug a friend. Whether you can invite someone back to your house. How you speak in meetings. Whether you can ask male colleagues out for a drink to talk about work. How long you can chat with someone at a party. Whether you can go on a date without having a friend who knows to be ready for a call in case things go wrong. Whether you can accept seemingly professional invitations from older men in your field. Whether you can say yes when someone wants to pick up the tab for drinks. For men, this is like ultraviolet light: it’s everywhere, but we can’t see it.

I have some hesitations about this new law, but it’s hardly the apocalypse that some of its detractors have made it out to be. It doesn’t change the standard of proof required in sexual assault cases and it doesn’t change the nature of the proceedings that govern these cases. These may both be problematic, as some critics think, but they’re separate issues. “Yes Means Yes” changes only the standard of consent, and does so in a pretty clear and unambiguous way.

Beyond that, keep in mind that this is just an ordinary law. If it were a ballot initiative, I’d be adamantly opposed. But it’s not: if it turns out to work badly or produce unintended consequences, it can be repealed or modified. And it’s not as if the current situation is some kind of utopia that should be defended at all costs. We’ll know soon enough if the law’s benefits are worth the costs. In the meantime, it seems like a worthwhile experiment in changing a culture that’s pretty seriously broken.