California enacted an unprecedented "Yes Means Yes" law last month requiring institutions of higher education to evaluate complaints of sexual assault under an "affirmative consent" standard to qualify for state funding.
Now, it seems that New York is set to follow down the same path: Gov. Andrew M. Cuomo said last week he had instructed the State University of New York to adopt similar policies on its 64 campuses, as the first step toward a statewide law that would apply to all colleges and universities.
The intent -- to do a better job of preventing and responding to campus rape -- is unquestionably laudable. But "affirmative consent" is a spectacularly misguided way to achieve this. These laws not only attempt to micromanage the sex lives of young adults to an absurdly intrusive degree, they also create a high risk of trampling the rights of accused students, and trivialize rape by blurring the lines between assault and miscommunication.
The SUNY rules approved by the board of trustees define consent as "clear, unambiguous, and voluntary agreement between the participants to engage in specific sexual activity." Ostensibly, this agreement need not be verbal: The rules state that "consent can be given by words or actions" as long as "mutually understandable clear permission" is conveyed.
But what does that mean? If two people are kissing and touching each other and one moves to initiate more intimate contact, does the other person show agreement to move to the next level by continued passionate kissing? Or do nonverbal cues have to indicate clear agreement to a specific new activity -- such as pausing to look at your partner and waiting for an affirmative nod?
Disturbingly, many affirmative consent advocates don't seem to have a clear idea of what these rules mean. For instance, while the California law also stipulates that consent can be expressed through words or actions, one of its sponsors, state Assemb. Bonnie Lowenthal, told a newspaper that under the standard, a person "must say yes."
Tara Culp-Ressler, a journalist with ThinkProgress.org, defends affirmative consent by writing that two people in a relationship are "not necessarily" in violation if they have sex without explicit agreement.
Meanwhile, "consent workshops" on college campuses stress that one must "ask first and ask often" and promote the idea that if you initiate sex without asking for and getting a "yes," you can't be sure you aren't committing rape. While the activists championing this idea stress that verbal consent can be "sexy" rather than awkward, their suggestions for dialogue -- which include "Do you want to have sex?" -- are not very reassuring.
Affirmative consent supporters say that often, a person may not actively protest unwanted sex because she or he is passed out or disoriented because of alcohol, or is paralyzed by fear. Yet state laws address such situations, not just in college disciplinary proceedings but in trials: No court would treat incapacitation, or submission to an explicit or implied threat, as consent. 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.
The law is already clear that sex without consent is rape. There is no need for new regulations to mandate how people express consent. Let's be serious about keeping the government out of the bedroom.
Cathy Young is a regular contributor to Reason magazine and Real Clear Politics.