Hari Sreenivasan has our look.
HARI SREENIVASAN: California recently made affirmative consent the law. And other states are considering similar moves, while many schools have made it a part of their policy.
Here to discuss this are Jaclyn Friedman, editor of the book “Yes Means Yes!: Visions of Female Sexual Power and A World Without Rape,” and Shikha Dalmia of the Reason Foundation, a libertarian think tank. She is also a columnist for the magazine “The Week.”
So, Ms. Friedman, I want to start with you.
Explain what exactly affirmative consent means, and why do you think it’s necessary?
JACLYN FRIEDMAN, Editor, “Yes Means Yes!”: Affirmative consent is the basic principle that all people participating in a sexual act or experience with each other have to make sure that their partner is not only not objecting, but that they’re actually actively into whatever is happening.
It’s really that simple. And if you can’t tell, you have to ask. It’s necessary because no means no, which we have all learned, is not adequate, right? There are a lot of situation where, if a person feels threatened or overpowered, they may freeze up and not protest, even though they don’t want anything to happen to them, or that they might be incapacitated from drugs or alcohol and can’t protest.
And, oftentimes, these are used as defenses by rapists, and they get away with it, and are left free to re-offend. And so we really need to move to a standard that says it’s on all of us to make sure that our partners are actively enjoying whatever is happening between us, which seems also like a pretty basic human principle.
HARI SREENIVASAN: OK.
Ms. Dalmia, that seems fairly logical. What’s wrong with it?
SHIKHA DALMIA, Reason Foundation: It does, except that the consent is required under current law, too. No means no also means consent, that you cannot have sex with somebody who has not consented.
The difference between no means no and yes means yes is that it puts the burden of proof on the person who has been accused to prove that they obtained consent, not on the person who was objecting or not giving consent.
So, essentially, it changes the presumption in a very essential way, that the person who is accused will no longer be sort of assumed innocent until proven guilty. It will be the other way around.
HARI SREENIVASAN: All right, Ms. Friedman, what about that switch, that the presumption has switched from guilt to — or innocence to guilt?
JACLYN FRIEDMAN: Well, we don’t say that when we say that a kidnapper, when we ask a kidnapper, like, did you have permission to take them somewhere, right? So that doesn’t create presumption of guilt. So I don’t know see why it would be different in sexual assault.
What it does is, it changes the default assumption that if you’re encountering someone sexually, currently, under current rules and regulations, the default is the assumption is that you can do whatever you want to their body until they stop you. And this just changes the default assumption, which is, you can’t do anything to anybody else’s body without their enthusiastic consent.
HARI SREENIVASAN: OK. So?
SHIKHA DALMIA: Well, if you notice what Jaclyn was saying, it shifted from consent to enthusiastic consent, which is kind of what the problem is.
It kind of mistakes how human sexuality actually works. People don’t — the way the yes means yes standard will work is that you have to give your enthusiastic consent, not just at the very beginning or at one point in the act. It has to be ongoing consent.
So, you move from kissing to fondling to other acts, it has to be achieved at every step. That’s just not how human beings have sex. And, yet, this particular standard will put the burden of proof on the accused to prove that they somehow obtained enthusiastic consent, when that’s just not how things work in the bedroom.
HARI SREENIVASAN: Ms. Friedman, without even the word just enthusiastic, how practical is the implementation of it? Do couples have to have written consent, or have a text, or how do they prove this in court if things go back in their relationship?
JACLYN FRIEDMAN: Look, the point of this — first of all, there are no courts. The affirmative consent law in California applies to college judicial boards, right?
So, the question is, can you remain part of the campus community or not? There’s no courts involved. There are no jails involved. That’s not what we’re talking about. A campus community is a voluntary community that nobody has a right to join or remain in. So, I just want to clear that up.
And campuses have an obligation under Title IX to provide a safe environment for all students, regardless of gender. And the Supreme Court ruled a long time ago that that applies to addressing rape and sexual violence on campus.
Of course we are not talking about written consent, or you don’t need a notary in the room to touch my left breast. It’s very practical. I can tell you that I practice it all the time, and so do plenty of people. All it requires is that you pay attention to your partner. You can be enthusiastic about trying something. You can be enthusiastic about finding out how something goes.
It’s not like you have to be at a peak sexual appearance the whole time. You just have to — if you’re unsure whether or not your partner is actively into whatever is happening, you just have to make sure. Whether that’s verbally, if you feel confident that you can read their body language, that’s — feel confident.
You can say, you know, these are — this is the body language that I would point to. It’s just about staying present and in communication with your sexual partner, which is something that is going to make all of our sex lives better anyway.
HARI SREENIVASAN: So, Ms. Dalmia, are you concerned that it impacts life beyond campuses?
SHIKHA DALMIA: Yes.
I mean, you know, feminists have made no secret about this. The campus yes means yes law is just a precursor to how they actually want to deal with rape cases in criminal settings, which is essentially changing the burden of proof from the person who is accusing to the person who is accused, which is actually very, very fundamental.
We can claim that, well, you know, on campuses, you’re not actually throwing people in jail, so it’s OK. But the fact of the matter is that you are ruining lives. The problem, the central problem with yes means yes standard is, in my view, is that it will actually not do all that much to snag real rapists.
It will go after people who actually didn’t, you know, mean any harm. They were not intending to rape or they’re not savvy enough to beat the system. They will essentially — people who are predators and savvy enough to rape are also savvy enough to lie in campus investigations.
And the problem with yes means yes is that it doesn’t really essentially get over the he said/she said problem. So that problem remains the same. On the other hand, it will make it very, very difficult for innocent people to actually prove that they are innocent. So you will create a lot of victims in the course of actually solving a problem that isn’t quite the way it should be solved.
HARI SREENIVASAN: OK.
Shikha Dalmia and Jaclyn Friedman, thanks to you both for your time.
SHIKHA DALMIA: Thanks for having me.
JACLYN FRIEDMAN: Absolutely. Thank you.