California is doing something good with the Yes Means Yes legislation. The law mandates clear and conscious consent as the standard that colleges apply to sexual assault cases. However, the law is being criticized as one that will criminalize most human sexual behavior in America, and an over-reach of government in dictating behaviors in the bedroom. These fears are misguided.
First of all, the majority of sex that happens is consensual. If you are totally sure that you are engaging in consensual sex, then this change doesn’t effect you. If you think you are engaging in consensual sex, but aren’t sure, then this law mostly applies to you. Learn to check in now. If you are afraid of this because you think the people you want to sleep with are potentially manipulative liars who are out to get you, then this law actually gives you tools to help protect yourself.
It might seem counter-intuitive to say that affirmative consent laws help protect people against false accusations, but they do. Remember, the law that passed in California isn’t just about changing the standard for consent, but also about widespread education and training. When the authorities in charge of keeping people safe are trained more effectively, they will lead more competent investigations. Our current culture of ignorance allows harmful myths to spread, and that cuts both ways.
Also, if you know the clear signs of consent, you can catalogue them in your head and be less vulnerable to manipulation. Someone who is giving mixed signals is someone who is more likely to accuse you. Conversely, if someone gives clear signals, but still makes a case against you, being able to clearly state the specific signals you received will strengthen your defense.
Another critique of the law is that there aren’t any clear guidelines for how to determine affirmative consent. Do you need to check in every 5 minutes, or is every 10 ok? If you ask someone if they’re into it and they respond by getting naked, is that a “yes”? And it makes sense, sex can be hard to talk about, especially when you haven’t had a lot of it yet.
But here’s the thing. Sex is something that involves adults. If you can’t have an adult conversation about it, you shouldn’t be having it. Puritan norms that make people feel awkward or ashamed of their desires create an environment where predators — both male and female — take advantage of vulnerable people. These predators thrive on a culture of shame and silence around sexuality, and do very real damage to the people around them.
The times when it is most important to get clear, verbal consent are when you are with a new partner or when you are in a relationship that is deteriorating. If you want to have a spontaneous encounter where one person takes charge and the other person submits, you have to be able to say that. If you don’t know what you want yet, you have to let people know you are still figuring it out. If you just want a one-night stand where you don’t get to know the person very well, you have to at least double-check that they didn’t change their mind somewhere between the bar and bedroom.
If you’ve already been doing everything right, then the only side-effect of everyone being clear is that you will get more of what you want and be better able to please your partners. If you are with someone who doesn’t respect your boundaries, or doesn’t make you feel safe sharing your desires, there is now a clear, legal message that that is not ok. If, for any reason, you are not able to give or get a clear “yes,” then you should absolutely not be having sex, and there are real consequences to moving forward.
This is a change to the current norm of how society expects young people negotiate sex, and it should be celebrated by all sides of this debate. It is chipping away at a culture of silence and misinformation that allows predatory people to take advantage of others. It makes the legal definition of consent more narrow, but that is necessary for a competent legal system. Most people out there are good, respectful people, and arming them with better communication will make their sex lives better. But for the people who have been victimized, this is the legal arm they need to hold those predators accountable.