The problems with current campus policies are likely to be exacerbated by so-called “yes means yes” laws and similar rules which already exist on more than 800 campuses.
One sign of trouble is that, as progressive blogger Fredrik deBoer notes, supporters of this standard don’t seem to be able to agree on what it means. Some think it mandates verbal consent and communication, preferably not just once but throughout a sexual encounter, and will revolutionize the way we approach sex and consent. Others say that it does no more than codify the simple decency of only having sex with a person who indicates that she or he is willing to have sex, and that nonverbal cues and body language will do.
Defenders of “affirmative consent,” such as Suffolk University sociologist Susan Sered, note approvingly that the legislation “removes the onus from potential victims to unequivocally convey and prove refusal … and places the onus on potential perpetrators to ensure active consent.” But this seems to be another way of saying that “yes means yes” shifts the burden of proof to the accused, which fundamentally conflicts with the presumption of innocence. And how could an accused person prove affirmative consent, especially of the nonverbal variety? When asked about this during the debates on the California bill, one of its sponsors, Democratic Assemblywoman Bonnie Lowenthal, told a newspaper, “Your guess is as good as mine.” For civil libertarians, this should not be an encouraging answer.
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