COUNTERPOINT: Idealized standards of consent are not realistic

Link: COUNTERPOINT: Idealized standards of consent are not realistic


Art by Di Wu | Daily Trojan

This past weekend, over 4 million people worldwide took to the streets in demonstration for the annual Women’s March. The first women’s march took place last January after President Donald Trump’s first day in office. The 2018 march was propelled in great part due to the #MeToo movement, which raises awareness about sexual assault and drives the fight to end it.

Sexual assault, specifically as it pertains to college campuses, is not a new issue. In 2014, California became the first state to issue an “affirmative consent” or “yes means yes” standard to protect victims of abuse and sexual assault. The new standard now dictates that any sexual action should be considered unwilling unless an affirmative “yes” is given by both parties. Previously, parties could imply consent and unwanted advances would only be identified when one party would say “no.” At the time, the new standard was a novel approach to tackle a serious issue. But a few years down the road, it became clear we did not know exactly what we were signing up for.

Before we can go on to critique the “yes means yes” standard, it is necessary to identify the root of the problem: It is an impossible standard to implement given current norms. The USC Code of Student Misconduct, drafted analogous to the California legislature’s, defines consent as a “positive cooperation in act and attitude made with knowledge and agreement to the nature of the act.” This is a vague description of what it takes for one party to agree to intimacy.

Does consent have to be verbal, or can it just be implied? What about mere “positive cooperation?”

Due to the rule’s ambiguity, it becomes almost impossible to put it into practice. In a case of alleged sexual assault, does the burden to prove consent fall on the alleged assaulter, or does the burden fall on the complaining party to prove that no consent was actually given?

To further complicate the matter, the USC code also dictates that “lack of protest or resistance does not mean consent, nor does silence mean consent.” Does this mean that college students are expected to distinguish between “positive cooperation” and “lack of protest?” Ideally, yes. But there is a dangerous lack of education for students to understand how to identify which is which. If we want the standard to be followed, we need to be educated about identifying consent.

Believing that a verbal “yes” is given before each and every sexual encounter ignores reality. The USC Code of Student Misconduct stipulates that, “consent cannot be inferred from an existing or previous dating relationship. Previous sexual activity between the parties cannot, by itself, be assumed to be an indicator of consent.”

This wording poses numerous problems. The USC Code and California standard suggest that without such an affirmative “yes,” each and every time a couple — no matter how long they have been dating — are intimate, they are engaging in sexual misconduct. Therefore, according to this, long-term couples who imply consent without a verbal “yes” each time they are intimate, are committing sexual assault.

The implication of “yes” becomes a “no” if only one partner takes that position. In other words, this is the old “no means no” standard in action. If we do not uphold the law for one case, how can we uphold it for other cases? Do we uphold the law only when someone complains? Where do we draw the line?

The “yes means yes” standard functions poorly between first-time partners as well. First-time partners do not seek a “yes” every time they engage in intimacy. According to the law, they should. The next focus needs to be on implementation, on teaching the new generation about this standard. Only by ingraining the idea of affirmative consent into our culture can it be effectively used.

A change in the statutes means nothing unless it is understood by those who are obligated to follow it. A rewriting of the law does not change a culture — only knowledge and education can do that.

Shauli Bar-On is a freshman majoring in political science. “Point/Counterpoint” runs Wednesdays.

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