What is Affirmative Consent?
'Affirmative consent' means affirmative, conscious, and voluntary agreement to engage in sexual activity.
What ‘Affirmative Consent’ Actually Means
From the NY "Enough Is Enough" Law:
Definition of Affirmative Consent
“Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression.”
Additional Mandatory Language That May Be Worded as Appropriate for Each Institution:
- Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
- Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
- Consent may be initially given but withdrawn at any time.
- Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
- Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
- When consent is withdrawn or can no longer be given, sexual activity must stop.
The Affirmative Consent Policy Project
A Listing of 450+ campuses and their versions of Consent and Yes Means Yes Policy
Below is an older post from the beginning of the Affirmative Consent Movement:
by Tara Culp-Ressler Posted on June 25, 2014 at 2:20 pm Updated: June 25, 2014
A proposed bill in California that would require college students to obtain explicit consent before proceeding with a sexual encounter is sparking controversy over whether that standard can actually work in practice. The legislation, which was introduced as a direct response to the current sexual assault crisis on college campuses, defines consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” every step of the way. There are some concerns that’s much too broad.
- The Affirmative Consent Standard states that the person who initiates sexual contact must receive a VERBAL YES (affirmative consent) from the other person before engaging in any sexual activity -- and that consent must be ongoing throughout the sexual encounter.
The California legislature is weighing a bill that would require college students to secure “affirmative consent” from their partners at every stage of sexual activity. If the bill is passed, colleges must use the legislature’s definition of consent in their sexual assault policies or risk losing state funding for student financial aid.
**Editor Update: SB 967 has been passed and signed by the Governor of California
Affirmative consent essentially changes the current standard of “no means no” to one of “yes, and only yes, means yes.” In its most basic form, it means that the person who is initiating sexual behavior must receive a verbal yes from the other person before continuing, and that this consent must be ongoing through the sexual encounter. In other words, consent for kissing does not count as consent for oral sex.
R. V. EWANCHUK (1999): “ONLY YES MEANS YES”
- No defense of implied consent.
- Consent is to be determined from the perspective of the complainant.
- Consent is specific. After someone has said no, one must take active steps to reestablish agreement.
- Positive steps to secure consent must be taken if claiming belief in consent.
- Silence and ambiguous conduct do no constitute consent.
MOVING BEYOND DOCTRINAL ANALYSIS
- Identify interpretive trends:
- Wide, but uneven, embrace of communicative consent.
- Some judicial unease with applying this standard. “Did he stop quickly enough to avoid the sexual assault charge? He says he did and the case law is not very helpful; should the stopping, under such circumstances, be mid- stroke?” (2002)
- Many decisions remain infused by myths and stereotypes preventing legal recognition of sexual assault.
CONCLUSION: FOSTERING COMMUNICATIVE SEX
- Through the elaboration of an affirmative consent standard, the courts are redefining normal sexual interactions, replacing a norm of aggressive seduction/pressure with a norm of sexual communication and active consent- seeking.
- Public education, and in particular, work with young people in schools is absolutely crucial in the struggle to develop a practice communicative sex.
SEXUAL VIOLENCE AS A SOCIAL PROBLEM
- Sexual violence is a pervasive social problem that is rooted in power relations
- 39% women have experienced sexual assault (Statistics Canada “Violence Against Women Survey” 1993)
- 23,000 reported cases of sexual assault (2005); yet police reporting rates remain the lowest of any violent crime at only 8% (General Social Survey).
- Sex of those charged: 97% male.
- Sex of “victims”: 80% females; males 8% adult, 12% youth.