This means that during an investigation of an alleged sexual assault, university disciplinary committees will have to ask if the sexual encounter met a standard where both parties were consenting, with consent defined as “an affirmative, conscious and voluntary agreement to engage in sexual activity.” Notice that the words “verbal” or “stone sober” are not included in that definition. The drafters understand, as most of us do when we’re actually having sex, that sometimes sexual consent is nonverbal and that there’s a difference between drunk, consensual sex and someone pushing himself on a woman who is too drunk to resist.
She calls out what she views as “misrepresentations of the bill,” explaining:
The law has no bearing on the vast majority of sexual encounters.
It only applies when a student files a sexual assault complaint. And all it does is help the disciplinary board craft its line of questioning to get to the important facts. Now, instead of starting the investigation by asking if the victim said no—and how she said no and whether her no was good enough to get her out of unwanted sex—the investigation focuses on the actions of the accused. Example questions could include, “Did she want to have sex with you?” or “Did she want to do everything you two did?”
Maya Dusenbery is really encouraged by the new law:
This paradigm shift has been a long time coming and is desperately needed. The idea that mutual desire, not the mere absence of “no,” should perhaps be the standard for an activity that’s generally agreed to be pretty fun hardly seems radical. And there’s nothing that makes me sadder about the state of our sexual culture than the fact that this bill was met by such resistance.
Others, including some on the left, are more skeptical. Michelle Goldberg is among them:
The law might force couples into dialogue about their desires—obviously a good thing—but it’s hard to see how that alone will address rape. It is, after all, a right-wing canard that acquaintance rape cases tend to stem from misunderstanding rather than predation. Research at one campus by the scholars David Lisak and Paul M. Miller shows that most rapists are serial offenders who have committed other acts of violence as well. “This portrait is more consistent with the data on recidivism among sex offenders than with the still-prevalent image of a male college student who, under the influence of alcohol, mistakenly crosses the line between sexual pressure and rape,” they write. Yet California’s law treats the campus rape crisis as a communication problem, even as it blurs the parameters of what sexual assault is.
Laurie Essig also objects to the law:
Like the antiporn laws, “yes means yes” is a bad romance between feminism and the state for two reasons: pleasure and danger. The statute equates good sex with a legalistic definition of consent rather than with the pleasures had by the parties involved. It also expands notions of criminality at a time when the criminal-justice system is regularly committing horrific acts of race- and class-biased violence.
Freddie piles on:
Even the people who show up in my comments to advocate for these policies seem to have little confidence that they will actually make it easier to prosecute sexual assault, rather than make it more confusing, more messy, more ambiguous, and more likely to produce abuse or evasion. Many who support these policies seem to do so out of a desire to be deeply committed to opposing sexual assault in an abstract sense, rather than out of the sincere conviction that these policies will reduce sexual assault in fact. It’s not enough to want to prevent rape; you’ve got to articulate why a reduction in rape is the most likely outcome of the adoption of these policies.
The controversy seems perfectly indicative of the enduring question for today’s left: are we in the business of being good or the business of doing good?
Meanwhile, Amanda Hess illustrates how the culture of “yes means yes” is spreading – to an absurd extent, in this case:
Here’s how [the new app] works: After deciding that you would like to have sex with someone, launch the Good2Go app (free on iTunes and Google Play), hand the phone off to your potential partner, and allow him or her to navigate the process to determine if he or she is ready and willing. “Are We Good2Go?” the first screen asks, prompting the partner to answer “No, Thanks,” “Yes, but … we need to talk,” or “I’m Good2Go.” If the partner chooses door No. 1, a black screen pops up that reads “Remember! No means No! Only Yes means Yes, BUT can be changed to NO at anytime!” If he or she opts instead to have a conversation before deciding—imagine, verbally communicating with someone with whom you may imminently engage in sexual intercourse—the app pauses to allow both parties to discuss. …
When I tried this process out with a partner, it took us four minutes to navigate through all the screens, mostly because he kept asking, “Why are we using an app for this?” and “Why do I have to give them my phone number?” (More on that later.) I was confused, too: As the instigator, I wasn’t asked to confirm that I wanted to have sex or to state my own intoxication level for my partner’s consideration. (A promotional video modeling the process begins by announcing how “simple” it is, then snaps out instructions for three minutes, but questions remain.)
Perhaps the process is deliberately time-consuming: The app provides the “opportunity for two people to pause and reflect on what they really want to do, rather than entering an encounter that might lead to something one or both will later regret,” the app’s FAQ reads. Or maybe I’m just old: At 29, I find it much easier to just talk about sex than to use an app for that.