The Cut / NY Magazine
7.6.15 | Jessica Roy
Affirmative consent — that is, defining sexual consent as “yes means yes” rather than “no means no” — has been the guiding principle in new campus assault policies from California to New York. By recasting consent as a definitive act rather than a nebulous, nonverbal feeling, supporters hope to eliminate the gray area that so often surrounds sexual encounters. Now, some cyber-civil-rights activists are hoping to use that same logic to fight nonconsensual pornography. Though a federal law banning revenge porn is in the works and tech companies are reshaping their policies to address the issue, activists believe an affirmative-consent approach could provide a stronger framework to protect future victims. Shifting the burden of consent from the subjects of naked photos to the uploaders of them would make legal battles waged by victims much easier to win.
An affirmative-consent model for nude photos could be applied either through the legal system or by lobbying tech companies to further adjust their policies. Legally, advocates have suggested adding an informed-consent requirement to statute U.S. Code 2257, which already requires creators of pornography to obtain documentation that certifies performers are over 18. With an affirmative-consent standard in place, anyone who created pornographic imagery would be required to obtain the written consent of the performer, and could be sent to prison if they don’t. (This standard would also protect amateur and professional porn actors from being forced to perform under coercion or duress.)
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