Boston Globe
7.27.15 | Wendy Kaminer
Affirmative consent rules governing sexual relations on school campuses have survived a lot of ridicule. When first adopted by Antioch College in the early 1990s, affirmative consent was fodder for a “Saturday Night Live” skit. Back then, the requirement that each participant in a sexual encounter request and receive explicit consent for virtually every move he or she makes was taken about as seriously as a Donald Trump presidential run. These days, no one’s laughing.
Adopted voluntarily by many schools and recently imposed by a pioneering California law on all private and public campuses in that state, affirmative consent is now considered a righteous, progressive reform. New York recently enacted the nation’s second affirmative consent law, in response to aggressive lobbying by Governor Andrew Cuomo and endorsements by Lady Gaga and House minority leader Nancy Pelosi, among others.
It’s unlikely that any students will consistently comply with the new rules, which are difficult to reconcile with the realities of sexual interactions, and, in any case, it’s unclear what compliance might entail. New York’s law requires “knowing [and] voluntary” consent, “given by words or actions . . . creat[ing] clear permission . . . to engage in sexual activity,” including any “intentional [sexual] touching, either directly or through the clothing.” Consent to any sexual act — or touch — may not be inferred from consent to prior acts, which means that consent should be repeated and ongoing. Is this law meant to be taken literally? Maybe.
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