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Affirmative Consent Comes to New York

Posted in Editorials on October 9th, 2014
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I’ve got to give credit where credit is due, and therefore I am very happy and proud to learn that New York State Governor Andrew Cuomo has instructed the State University of New York (SUNY) to make affirmative consent the standard on all 63 of its campuses.

“Consent is clear, knowing and voluntary,” the SUNY rules will say. “Consent is active, not passive.

“Silence, in and of itself, cannot be interpreted as consent.”

Consent need not be verbal, but it must be unambiguous and mutual. “Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity,” the rules will say.

An alumna of a SUNY school, I’ve written before about my perceptions of sexual assault on campus and how among my group of friends it was considered something to be expected that was our responsibility to avoid. When I was seventeen years old, I had no concept that rape culture was something that could be changed or fought against. But with time I realized that point of view was flawed – individuals have a choice to commit sexual violence or not and there’s nothing inevitable about it at all. So I’m very glad to see this change being made.

Not everyone is happy about the new rules, however. Cathy Young at Newsday writes:

No court would treat incapacitation, or submission to an explicit or implied threat, as consent.

She couldn’t be more wrong. In the most high profile example of this in recent memory, a woman who was both incapacitated by alcohol and under the implied threat of force from two armed police officers was raped in her own apartment and the men who raped her were acquitted.

Affirmative consent standards target far more ambiguous incidents in which one person initiates or escalates sexual activity in a consensual situation and the other person goes along — possibly because she or he feels pressured and doesn’t have the nerve to say no. But surely equating such experiences with rape is insulting to victims who are actually forced to have sex against their will — and generally to women, who are presumed under the new standard of being incapable of saying no to unwanted sex.

Young contradicts herself here. A person who feels pressured and cannot say no is being coerced, is being threatened implicitly.

And she falls into the trap that so many do. It’s not that people who support affirmative consent standards don’t think women are incapable of saying no. It’s that we don’t think they should have to. Here’s Twisty Faster who explained it all brilliantly:

Although this condition does not obtain with regard to any other crime you can think of, when it comes to rape, women are currently considered to exist in a state of perpetual “yes!”. This is because “yes!” is consistent with global accords governing fair use of women. Victims of robbery or attempted murder don’t have to prove that they said no to being robbed or murdered; the presumption is that not even women would consent to being killed. But because penetration by males is what women are for, if we are raped we have to prove not just that we didn’t say yes, which is impossible to prove, but that we specifically and emphatically said no, which is also impossible to prove.

Thus the need for an affirmative consent standard:

My wacky consent scheme flips it around. According to my scheme, women would abide in a persistent legal condition of not having given consent to sex.

Women can still have all the hetero-sex they want; if they adjudge that their dude hasn’t raped them, all they have to do is not call the cops.

It’s not that I don’t think women can say no. It’s that our partners should want us to say yes.

For further reading: Affirmative Consent As A Legal Standard,
On Deciding What Counts: Elizabeth Ellen and What Makes A Victim
, Our horrible consent culture is a tax on women

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