When ‘No Means No’ Isn’t Enough: California Considers an “Affirmative Consent” Bill

by Emma Tilden

In his recent article regarding on-campus rape, George Will cited one Swarthmore student’s story of being assaulted:


She and her assaulter had “now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”  She later reported that she had been assaulted. 

Will’s purpose in citing this story was to demonstrate that survivors of sexual assault are over-reporting, citing non-assault sexual encounters as assault.  His use of this example in particular shows that Will clearly does not understand the idea of affirmative consent. 

Let’s ignore for a moment the fact that this woman had already said no, and look more closely at the second half of the story: the assaulter’s second attempt to have sex with the woman.  Will implies that her passive endurance of the assault should count as a form of consent.  That is, if I may say so, completely ridiculous.  What part of silent endurance does he interpret as enthusiastic participation? 

Apparently Will’s misconception of how the words ‘yes’ and ‘no’ work is a more widespread problem.  In fact, the California legislature sees it as enough of a problem that its members are weighing a bill that would require colleges to use the legislature’s definition of consent (i.e. affirmative consent) in their sexual policies.  If the bill is passed, schools that do not comply will lose state funding. 

The notion of “affirmative consent,” according to the legislature’s new bill, entails securing actively affirmative consent from partners at every stage of sexual activity.  It’s pretty self-explanatory. 

Apparently this is a complicated concept for some folks.  Its detractors have begun snide commentary about drafting “sex-contracts” or sex that involves more talking and checking in than actual sex.  But the bill doesn’t define consensual sex in any of those ways.  Instead, it calls for “a freely and affirmatively communicated willingness to participate in particular sexual activity or behavior, expressed either by words or clear, unambiguous actions.”

The bill goes on to state that “Lack of protest or resistance does not mean consent, nor does silence mean consent… The existence of a dating relationship between the persons involved, or the fact of a past sexual relationship, shall not provide the basis for an assumption of consent. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.” Partners can’t consent if they are asleep, unconscious, or incapacitated by the use of drugs or alcohol. 


Really, it all seems quite intuitive.  The definition of consent shouldn’t need to be legislated—it’s very clear: consent means saying yes.  The fact that California’s legislature felt the need even to propose this bill is a sign that we’ve still got a long way to go on the issue of sexual assault.  Still, it is a relief that there are steps being taken to ensure the safety of female students on California college campuses, the first of many advancements for equality. 

Images courtesy of womenactionmedia.org, explosm.net, fusion.net, and warwick.tab.co.uk.  

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