Why ‘Yes Means Yes’ Rules Can’t Work

Despite criticism from all overthe politicalspectrum, so-called “yes means yes” sex rules are on the march. After California, New York Gov. Andrew Cuomo signed a law on July 7 requiring all of the state’s universities to adopt an affirmative consent policy for sexual assault cases. Similar rules are set to go into effect at the University of Minnesota, though their implementation has been delayed by civil liberties concerns; New Hampshire and New Jersey are considering legislation that would tie funding for colleges to the use of affirmative consent standards. Meanwhile, reports from the field—and even the words of the people who champion these policies—leave little reason to expect anything but disaster.

Maybe an App Will Help

Take, for instance, a recent piece by Amelia McDonnell-Parry on the feminist site The Frisky, vehemently objecting to several new smartphone apps targeted to college students that purport to facilitate affirmative consent—for instance, by allowing partners to record a 20-second video stating their mutual consent to sex. McDonnell-Parry agrees with Apple, which has barred one such app as “icky.”  (Of course, many feel that way about “affirmative consent” rules in general.) She is particularly irked that the app is intended to provide proof of consent—which, evidently, amounts to supporting the heresy that women may lie about rape and that men can legitimately worry about false charges. McDonnell-Parry also argues that a recorded “Yes” should not be treated as final: “After all, consent, once given, is NOT locked in stone, and pushing the idea that the ‘consent discussion’ is over once someone has said ‘Yes,’ is downright dangerous.”

Interestingly, McDonnell-Parry believes that, contrary to what campus policies and consent workshops typically teach these days, agreement to have sex can be expressed through “indisputably consenting body language” as well as words. It does not seem to occur to her that, even aside from deliberate lies, someone who regrets a sexual encounter could genuinely come to believe that she (or he) never gave consent. We are thus back to a central problem with affirmative consent policies, even aside from the intrusive regulation of how people conduct themselves in sexual situations: proving that active consent was obtained is virtually impossible. Some supporters of these policies openly admit that they have no idea what kind of proof a wrongly accused student could offer to clear himself (“Your guess is a good as mine,” California Assemblywoman Bonnie Lowenthal told the San Gabriel Valley Tribune last year). Others, such as McDonnell-Parry, openly say that there is no need for proof since false accusations are not an issue.

The Times Weighs in

Meanwhile, the New York Times, which has consistently supported the campus rape crusade, has a new report intended to show an affirmative consent success story focusing on the University at Albany, a part of SUNY. Author Sandy Keenan writes, evidently with a straight face, “The consent definition within [the new law], officials say, is not intended to micromanage students’ sex lives but to reorient them on how to approach sex and to put them on notice to take the issue seriously.”

Many students, Keenan acknowledges, are resistant to being “reoriented.” Carol Stenger, director of the university’s Advocacy Center for Sexual Violence, laments that “men and women think the situation is a wash when both are inebriated” and that it “drives [her] crazy.” (Stenger never explains why they are wrong.)  The male student at the center of Keenan’s article, junior Tyler Frahme, initially complains that affirmative consent policies are not “gender-neutral” and “cast men in a predatory light.” However, his friend Jill Santiago, who has organized sexual assault prevention training, tells him that “if guys realize they have to ask and get permission … this could wind up protecting everyone.” (That sounds suspiciously like the ultimate heresy: suggesting that men need to be protected from false accusations.)

A Little More Comfortable

At the end of the article, Keenan reports that when she called Frahme about a month later, he told her that, to his own surprise, the policy has changed his behavior and he is now “practicing consent almost religiously.” Specifically, he checks for consent—with questions like “You O.K. with this?” and “Do you still want to go ahead?”—“once or twice during sexual encounters with women he knows well, and four or five times during more casual or first-time hookups.” And how’s that working? Frahme tells Keenan that “it’s getting to be a little more comfortable,” which is hardly a ringing endorsement; however, he also reports that one first-time partner thought his questions were a devious way of manipulating her into bed. Assuming that Frahme wasn’t pulling Keenan’s leg—just how many women is he talking about over a one-month period?—this raises the disturbing possibility that questions intended to elicit consent could be construed as a form of sexual pressure.

Keenan’s article, which also includes interviews with several young women, does contain one genuinely disturbing account of campus sexual violence. One of her female interviewees, a senior, told Keenan that her only sexual encounter during her four years at the school turned disastrous when her male partner became too physically aggressive and domineering, ignored her request to stop and her attempt to push him away, and covered her mouth with his hand as he forced himself on her. Dealing with this kind of sexual assault, in which the evidence often comes down to her word against his, presents a difficult challenge. But “consent policies” will do nothing to help: a man who is willing to physically coerce a woman into a sexual act, ignoring her verbal and physical resistance, won’t hesitate to claim that she verbally consented.

The Story of Tim

The type of male student most likely to be ensnared in “affirmative consent” policies, and the type of incident likely to be reclassified as non-consensual, is illustrated by a revealing story on Cracked.com, a website oriented toward young adults that combines a hip style with leftist cultural politics, titled “5 Things I Learned Committing A Campus Sexual Assault.”

The article tells the tale of “Tim,” a student who approached the website to tell the story of how he committed a sexual assault (the details of which were apparently confirmed by his university). During the summer, between semesters, Tim and his college friend “Vicky” went out for a night of bar-hopping during which they had four or five drinks each, held hands and engaged in sexual banter, stopped briefly at a sex shop, and then went to Vicky’s place where they sat down on the couch to watch DVDs with Vicky’s head resting on Tim’s chest. At some point Tim began rubbing Vicky’s back, then moved his hand down underneath the waistband of her jeans, encountering no objection—indeed, he thought she felt her shift toward him—and proceeded to stroke her breasts over and then under her shirt. According to the article, “This all went on for an hour or so” before Tim hugged Vicky good-bye and went back to his own room.

The next day, Tim was shocked when a friend of Vicky’s confronted him and told him that “people had gone to jail for doing what he’d just done.” While Vicky never went to the police (and it’s extremely unlikely that the police would have taken such a case), she did file a complaint with the college. Tim was found responsible, and while his only punishment was a reprimand, his life on campus has been turned upside down by the requirement to stay 50 feet away from Vicky.

According to Vicky, the reason she didn’t rebuff Tim is that she had dozed off, woken up to find Tim touching her, and “froze in fear.” This claim seems extremely far-fetched, given the intimate situation and the lack of any indication that Tim might be violent. (Since Tim does not sound like a sociopath, it also seems extremely unlikely that he would not notice Vicky was frozen stiff.)  If grown women are so fragile and so terrified of men, that’s a rather depressing statement about prospects for gender equality.

It’s hard to tell what actually happened in this case, especially since Tim, who is racked by guilt, is extremely anxious to avoid anything that may smack of “victim-blaming.” It may be that Vicky didn’t quite know how to tell him to stop and the incident was a genuine misunderstanding. It may be that she was more willing than she admitted to herself; Tim’s narrative repeatedly stresses that she was a “good girl” who would never agree to sex. (Both of them are religious, and the convergence of “progressive” sexual politics with old-fashioned sexual guilt is one of the curious aspects of the piece.)

Cracked.com author Ryan Menezes stresses that even if Tim innocently misread the signals, it doesn’t mean his “victim” was any less traumatized. But people have plenty of traumatic experiences that aren’t criminal. Stipulating for the moment that Tim should have been more attentive to Vicky’s signals, there were many possibilities for a non-punitive resolution—including, perhaps, university-provided counseling and mediation.

Would affirmative consent have helped avoid such a situation? Doubtful. It is easy to imagine a similar scenario in which Tim asks Vicky if she’s okay with this and Vicky nods or even says yes—and then makes a complaint within the campus system, claiming, in all sincerity, that she felt too intimidated to say no.

“Yes means yes” will not stop sexual predators. It will turn more sensitive young men like Tim into victims of a college “judicial” system rigged so that the accused virtually cannot win.


7 thoughts on “Why ‘Yes Means Yes’ Rules Can’t Work

  1. Affirmative consent is just one of several examples in which government over-reach is polluting higher education.

  2. This is constructively criminalizing sex for men. There will always be some clinical technicality that can be cited to interpret any sex act as rape, but it all comes down to “what the woman says”. More women will grow old alone and childless.

  3. No, No, No !
    Tim is wrong. . .
    It was sexual assault when he held her hand. That traumatized her, and made her unable to tell him to order some Pizza or just to stop fondling her anatomy.
    Oh fair maidens to you I will warn,
    The young men you see are like the dew on the corn,
    They are with you through the night,
    And they’re gone in the morn.

  4. Frozen in fear from being stroked?

    This can only come from being told they are victims of sexual assault for even the most minor and typical interactions. So instead of taking action and telling the guy to knock it off, they run to a sexual assault coordinator.

    When I went to college, women and men were taught “no means no”, and that was based on the assumption that people were not so terrified of each other that they could speak.

    Clearly that’s not the case any more.

  5. So sad. So pathetic.
    Affirmative Consent, of course, is an abomination: a perversion of the law, reflecting nothing so much as a complete and utter misunderstanding of human behavior, sexuality, and the marked confusion, anxiety, misunderstanding, awkwardness, pain and joy which is adolescence.

    But given the brave, new world created by this legally prescribed affirmative, enthusiastic, positive, conscious, explicitly contractual sexual consent (achieved & provable before and throughout any sexual event) — we are all criminals.

    Well — perhaps not those of us who have escaped these Stepford Campuses. Until or unless this poisonous doctrine infects the world beyond the ivied gates, most of us are safe in our normal sexual encounters filled with constantly evolving mixtures of expectations, hopes, desires, lusts, fears, love, weariness, compromise, and excitement…..all of which is only rarely made verbally explicit…none of which is provable (after the fact). But for those trapped in these clockwork mazes, abstinence, and sexual segregation is the only real alternative to the hell & damnation which is Affirmative Consent.

    Consider poor, pathetic Tim … who with his friend, the equally pathetic Vicky gets buzzed on a bar-hopping night. Drinking, laughing, flirting — they stroll through a sex shop….they play grab-ass in a game parlor…. they hold hands and return to her apartment where they watch a movie while entwined in that late night, sexual haze which, if we’re lucky, has afflicted us all. And then, filled with that heady mix of alcohol, hormones, love, lust, loneliness & desire — he proceeds tenderly to caress her butt and her breasts (outside and inside her clothes), never hearing even a murmur of dissent. He undoubtedly thought this was wonderful… hugging her & sending her the smiley face when the evening had ended.

    So why did he do it; why did he commit what he later came to consider the “absolutely biggest mistake of his life” ? Because he was a normal, adolescent human being, buzzed, horny, romantic, and significantly sexually interested in another normal, adolescent, female human being who was (according to all the evidence available) equally sexually interested in him, equally buzzed, equally horny, & equally romantic who seemingly enjoyed being caressed.

    Nothing — absolutely nothing is wrong with this picture. This is completely normal and completely understandable….and is echoed (if we are honest with ourselves) in every adult human being’s sexual history (though we all tend to forget much of that adolescent fumbling). What is absolutely abnormal is the after-the fact reaction by the now-sober Vicky…who seemingly was horrified by the experience (horrified by the caresses? horrified by how she perceived & reacted to the caresses — at that time? Not even Vicky truly knows what her motivations were in that quiet room in that moment; we certainly do not). What is absolutely abnormal is the fact that an official gathering of so-called adults then gave credence to this neurotic complaint — initiated a formal investigation — found Timid Tim guilty — and condemned him to a bubble of isolation, running in fear from any potential contact with his now traumatized paramour. And now he begs her forgiveness.

    For what?
    The question here is much larger than Tim & Vicky.

    Are women truly adults? Are they responsible for themselves? their actions? their decisions? Or are they helpless victims, requiring the utmost in protection — unable to speak for themselves, unable to resist or even object (in word, deed, or gesture) to a gentle caress expressed by a friend on a long romantic evening? The last 100 years of Women’s Liberation would tell us, very clearly and very firmly that women are the equal of men: capable, strong, independent…and obviously able to accept or reject any wanted or unwanted caresses by anyone. Sadly, that century of progress has been completely discarded as the loudest voices among us now tell us with certainty: women are weak, easily persuaded, easily frozen, easily convinced to do things they do not truly want to do. Vicky, they tell us now, is a Victim. And Tim — the Devil. “Why,” he asks us, “should I not go to hell for what I did?”

    In the real world, in a normal, healthy world — the answer would be, “Because you did nothing wrong.” Sadly, as far as we have fallen down this rabbithole, now the only answer the Red Queen ever gives is “Off with his head”. Good Riddance. Bad Rubbish.

    We can only hope that when we wake up we’ll discover that all this was nothing but a bad, bad dream.

  6. A fine article, Cathy. Thank you for writing it.

    I get the feeling that advocates of “yes means yes” are not as interested in protecting women as they are in simply maximizing the number of men who can be punished.

    Do you get that sense?

  7. ABR- Always Be Recording

    Record all sexual encounters, surreptitiously or otherwise. The punishment for that (where such exists) is significantly less than the consequences of being accused of rape.

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