Last September, California Governor Jerry Brown signed a new law mandating that California universities take certain steps regarding their sexual assault policies. Many of the changes are common-sensical, i.e., a student who is intoxicated or asleep cannot be said to have “consented” to sex. (This might seem like a no-brainer, but you would be surprised how many people wonder about that).
But the law, which went into effect a couple weeks ago, is not without controversy. Most notably, it contains a clause which states that there must be “affirmative, conscious, and voluntary agreement to engage in sexual activity.” It is more commonly known as the “yes means yes” standard, in which consent for sex has to be explicit. “Lack of protest or resistance does not mean consent, nor does silence mean consent,” the law says.
Libertarians, naturally, went ballistic over the law. More government intrusion, they cried. Now the government is regulating how students are supposed to have consensual sex, they screamed.
Many liberals agree that the law is intrusive. But they are divided over whether the intrusion is good or bad. As Ezra Klein at Vox puts it, “If the Yes Means Yes law is taken even remotely seriously, it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and this is also the case for it.”
In other words, yes, it is a terrible law because it is intrusive, and yes, it is a good law because intrusiveness is the point.
It’s quite true that the law won’t stop rapists who will simply say (as they do now) that they had “affirmative consent”. Instead of “he said, she said” fights over whether she said “no”, there will be “he said, she said” fights over whether she said “yes”, as critics point out.
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