Affirmative Consent Is Back
In the later years of the second Obama administration, affirmative consent was all the rage. Affirmative consent refers to the idea that “no means no” doesn’t cut it; when it comes to sex—or even kissing—all actions must be explicitly and affirmatively agreed upon.
There’s nothing wrong with affirmative consent as an ideal, though some may argue it’s the antithesis of erotic. But affirmative consent as a legal standard is unworkable and dangerous. And as a feminist standard, I think it leaves a lot to be desired too.
Alas, affirmative consent back, in the form of a very anachronistic bill in Utah.
Redefining Consent in Utah
Utah House Bill 377, from state Rep. Angela Romero (D–Salt Lake City), would amend the state’s law on rape and sexual assault to say that “silence, lack of protest, or lack of resistance alone do not demonstrate consent.”
“Romero has filed several bills in recent years that would create a new third-degree felony offense for instances in which a perpetrator fails to get consent from a victim through words or actions,” reports KSL-TV. “But those bills have been met with resistance or ignored all together.”
Her latest effort is described as a “scaled-back proposal.” But, clearly, this is the same concept as the others, just packaged differently.
Say two people are cuddling, kissing, or engaged in more explicit sexual activity. When one party starts to go further—be that by initiating intercourse or simply touching someone’s breasts or “anus, buttocks, pubic area, or any part of the genitals” or “otherwise tak[ing] indecent liberties”—the other party does not object, leaving the initiator to believe this escalation is desired.
Under Romero’s proposal, the first party could be guilty of rape or sexual abuse.
Granted, this would not automatically be the case. Here’s the full consent clause that would be added to the state’s sex crimes statute: “While silence, lack of protest, or lack of resistance are among circumstances that may be considered in determining whether consent was given, silence, lack of protest, or lack of resistance alone do not demonstrate consent.”
But in a way, that makes things more muddy. If someone doesn’t say “stop” or “no,” it might be fine or it might be rape?
The only way to be sure you weren’t violating the law would be to obtain affirmative consent at every step of an intimate encounter—before kissing, then again before any sexual touching, and so on.
An Unworkable Standard
There are obviously some situations in which affirmative consent is a good idea. If two people are hooking up for the first time, explicitly asking before initiating sexual intercourse is a no-brainer. Perhaps, too, when moving from mild sexual activity to more intimate acts.
But affirmative consent as a legal standard doesn’t merely apply in situations like those. It says that explicit asking and agreeing is necessary between any two people, even those who have been intimate together many times before. And it says this agreement is needed at every point in an intimate encounter, even when moving from something like kissing to what our grandparents might have called “light petting.”
This means even members of a long-term relationship can claim sexual assault if a partner failed to get an enthusia
Article from Reason.com
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