Credit: Calista Lam | Mustang News

Zachary Grob-Lipkis is a Mustang News columnist. The views expressed do not necessarily reflect those of Mustang News.

A law is only as effective as its adherents. In the case of sexual consent, a new set of criteria has taken hold of hearts and minds across the country. ‘Affirmative consent’ requires participants to enthusiastically provide clear confirmation of their consent before and throughout each sexual encounter no matter their prior relationship.

There is no room for ambiguity in this model — and that’s exactly how it was designed. Affirmative consent is not meant to be assumed. It is meant to be granted unequivocally. Unfortunately, the policy fails in both clarity and practicality. It hits the same hurdles as other legislation aimed at confronting the campus sexual assault epidemic the moment it jumps out of the law books and into practice.

Critics of affirmative consent frequently point out the fuzziness surrounding what, exactly, qualifies as granting consent. Many iterations of the law insist that it be given verbally, but some omit this requirement. One such version, California’s 2014 ‘Yes Means Yes’ law, was the first to make affirmative consent the standard used by campus tribunals. Early drafts of the flagship bill included language which warned that “relying solely on nonverbal communication can lead to misunderstanding,” but this was dropped before passing.

Nonverbal consent brings ambiguity back into the picture. Cathy Young from Time magazine claims that, “as a legal standard, nonverbal affirmative consent leaves campus tribunals in the position of trying to answer murky and confusing questions — for instance, whether a passionate response to a kiss was just a kiss, or an expression of ‘voluntary agreement’ to have sexual intercourse.” To get around this confusion, “administrators are likely to err on the side of caution and treat only explicit verbal agreement as sufficient proof of consent.” Young points out several schools like Occidental College and Duke University whose policies today discourage or disallow nonverbal consent for this reason. Assemblywoman Bonnie Lowenthal, one of the California bill’s cosponsors, has said affirmative consent requires a verbal “yes.”

Verbal communication is clearly the foundation of affirmative consent. This leads directly into the policy’s other common criticism: people just won’t do it.

Some will adjust their lifestyles and provide or seek enthusiastic, ongoing, and verbal consent in every sexual encounter, but I can’t see most people doing that. In casual encounters, flirting won’t be exchanged for potentially awkward, straightforward requests for approval. On the other end, people in long-term relationships will frequently forego verbally checking for consent, believing it unnecessary if they trust their partners.

A law isn’t followed simply because it exists; it’s followed because it’s well-enforced or because people believe in it to such a degree that very few ignore it. Plenty of people who believe in the idea of crosswalks and speed limits still jaywalk and speed when they don’t see any police officers. Even if they consider traffic laws vital to our society, they might believe society can get by without perfect participation. The same logic applies to consent rules.

For as long as there have been laws, there have been regulations on what citizens can or cannot do when it comes to sex. People have been, with varying levels of impudence, breaking those laws the whole time. It’s hard to regulate what people do in the bedroom — and at the end of the day, a requirement seen as a technicality will be ignored.

I don’t think that disqualifies affirmative consent entirely. Sure, drivers speed when they think they’re undetected, but most stop at stop signs and red lights whether or not police are there. The difference is that these aren’t seen as unnecessary precautions. We need them to prevent accidents and they don’t work unless everyone obeys them. With proper education, affirmative consent could be viewed the same way. A clear, verbal confirmation of consent is not too much to ask if it is considered an easy and effective method to prevent sexual assault.

The ‘Yes Means Yes’ movement is not a bad start. Its policies do fail to protect both alleged perpetrators and victims against ‘He said, She said’ (or, in this case, ‘She said, She didn’t say’). They also don’t alleviate the due process issue, wherein campus tribunals have struggled to balance believing and supporting the victim with considering the accused innocent until proven guilty. But ‘Yes Means Yes’ does foster an environment in which the fight against sexual assault could be won in large by an action as menial and second nature as stopping at stop signs.

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