Understanding Affirmative Consent

First, before we get started, I just want to check — are you sure you want to read this article? It’s about a five-minute read, minimally invasive, and I think it’s funny and informative. I want you to know what to expect before you decide. You’re good? Awesome, thanks for affirmatively consenting to read this article!

Affirmative consent is the latest attempt to address an epidemic of sexual assault on American university campuses. Governor Jerry Brown of California signed the first Affirmative Consent bill into law in September 2014. This bill set a legal precedent requiring state-funded universities in California to adopt affirmative consent standards. Several universities in other states proactively followed suit.

The rollout of these new measures has been rocky. Students are clearly confused about affirmative consent, and I understand why. By the time I got through some of the training materials schools are using, I wasn’t even sure if I could have sex with myself.

Schools don’t fully understand how affirmative consent works, and are doing a terrible job of explaining their own standards to students. One student asks point-blank, “Are there guidelines? Are we supposed to check every five minutes?”

Verizon guy ask, "Do you consent now? Good!"

No, affirmative consent is not a matter of asking “Can I keep (blanking) your (blank)” every five minutes. The spirit of affirmative consent is that before anything new happens, your partner understood and was excited to do it. So you’d better have asked before you started (blanking).

Practically, you should check in with your partner(s) before beginning any new activity that escalates the level of physical risk or emotional intimacy. In a “he says, she says” scenario, how can a judge, or a lawyer, or any third party know if one partner asked before moving from first base to second? You can’t. That data is unattainable. Like tilting at windmills, schools keep grasping for surefire ways to prove the presence of consent. But consent is just not as simple as universities, parents, or lawyers want it to be.

“Check in with your partner(s) before beginning any new activity that escalates the level of physical risk or emotional intimacy.”

Many institutions are keenly interested in preventing their prestigious names from peppering any more rape-related headlines. So naturally, there are many ridiculous apps and kits marketed to universities as “solutions“ to the “consent problem.” One such app is designed to record, on video, evidence of consent in advance of “sexual relations.” Each partner is prompted to state his or her name on camera, the name of their partner, and to state explicitly “yes” to “sexual relations” with that person.

Horrified stick figure is asked on camera to confirm that it is consenting to sexual relations

Besides being utterly creepy and taking all the fun out of everything, the premise of this app is dangerously flawed. Consent is not a checkbox; it cannot be irrevocably granted on a form at the beginning of “having sex.” One “yes” does not mean you can ignore someone if they revoke their consent. And one verbal “yes” does not cede permission for any and all sexual acts.

“Sex” is not one thing. Sex is a myriad of different experiences and activities in a row. We simply paraphrase these as “having sex,” because it gets really awkward when you’re asked what you did last night and you describe it stage by stage.

Every sexual activity has unique levels of risk, appeal, and comfort for you and your partner. Each activity requires explicit consent. Sex is a broad category, like sports. If you told your mom that you consented to “sports,” how pissed would you be if she signed you up for curling? You know, unless you’re into that sort of thing.

“If you told your mom that you consented to “sports,” how pissed would you be if she signed you up for curling? You know, unless you’re into that sort of thing.”

If you’re having good sex, you’ll find yourself asking your partner to consent a lot. The question “May I touch your breasts?” only gets you consent to touch — you guessed it! Breasts! If you want to try something new, you must ask “May I do this?” or “Would you like it if I did this?” and wait for explicit consent to do so. (This goes for women too, guys. Whomever is escalating things needs to ask, regardless of their gender.)

Affirmative consent is often summarized as “yes means yes.” That’s catchy, but flawed. This has already been abused to create a new legal loophole. Proof that someone said the word “yes” can be all that is required to dismiss a legal investigation into a sexual assault. (Please note the air quotes around the words “rape victim” in the link headline. Her rapist was found guilty on all charges.)

“Consent is not a checkbox; it cannot be irrevocably granted on a form at the beginning of ‘having sex.’ ”

“Yes means yes” is undoubtedly a better mantra for consent than “no means no,” but it’s a misleading tagline for affirmative consent. One “yes” is not an all-access pass.

Isn’t asking for consent for every. single. activity. a little over-the-top? After all, you want your partner to think you’re sexy, not OCD. Sure, maybe you already have an intimate relationship with this person. Let’s say you’ve already navigated a lot of physical boundaries together, and you know their non-verbal cues well. Then you might not need to ask for consent out loud. It can be as subtle as moving your hand, making eye contact, and seeing a familiar nod or smile that shows that your partner understands and consents.

But let’s say you’re a teenager, and you’re trying something for the first time. You don’t have any data about how your own body is going to react to that stimuli, much less how your partner will react. You do not have enough data to rely on non-verbal communication. So ask out loud. Be absolutely sure; do not assume. Remember that time your friend ordered a pizza and you assumed it would not be covered in anchovies and pineapple? That was regrettable. Don’t assume.

Cartoon with two panels. On left, a stick figure excited for pizza! On right, stick figure horrified to discover that the pizza is covered in, you guessed it, anchovies and pinapple.

Affirmative consent feels perfectly natural when you actually care about your partner’s health and well being. Just keep checking in with your partner, to ensure that they are genuinely enjoying each experience with you. Yes, you can care about a person’s health and well being even if you’re just having a one night stand with them. Good people care about not hurting other people.

Bullying or coercing someone into saying yes is a form of sexual assault. Unfortunate but true: lots of people say “yes” when they don’t want to. Maybe they are afraid of being ostracized from a social group or being dumped. “They said yes!” is a pretty sorry excuse if deep down, you know they were uncomfortable. Maybe according to the law you’re not a rapist, but you’re still a jerk.

If your average college student can handle “Hey, hold my beer” before handing their buddy a beer and then doing something painful, they can handle affirmative consent. You hold out your beer. You ask. Buddy either takes the beer, or, doesn’t (and hopefully, talks you down from doing something stupid.)

Consent doesn’t need a catchy phrase or a cartoon mascot to be understood by young people. Consent needs advocates, who are willing to start honest two-way conversations. If you don’t know how to start that conversation with a young person in your life, why not just send them this article? Affirmative consent IS complex, but it isn’t difficult to understand when someone takes the time to explain it.

Need help? In the U.S., call the National Sexual Assault Hotline at 800-656-HOPE (4673) or visit the National Sexual Assault Online Hotline operated by RAINN. For more resources, visit the National Sexual Violence Resource Center’s website.