Yes means yes: the rise of affirmative consent
Is it the best policy? After a horrific sexual assault case shocked the nation, Spain became the latest country to write affirmative consent into law. But what does it mean?
April 2018. Crowds swarm the streets of Madrid. “It’s not abuse, it’s rape!” voices rage. “If you touch one of us, you touch all of us!”
A Spanish court had just acquitted five men of raping an 18-year-old girl at Pamplona festival. Footage of the assault, filmed on an attacker’s phone, showed the victim immobile with her eyes closed.
Judges interpreted this as consent because Spanish law stated that rape must involve violence and intimidation. The men were convicted on a lesser charge of sexual abuse.
Anger continued to grow, and in July the government announced reform. From now on “yes means yes” and everything else, including silence, means rape. Supporters say the policy will remove the onus on the victim to prove they fought back.
More than 10 countries in Europe have made similar changes, including Sweden just weeks previously, but the model of affirmative consent first emerged in the US.
In 1993, Antioch College in Ohio was widely mocked for introducing an “ask first” policy in response to escalating assaults on campuses. Student activists spread the movement for an “explicit, informed and voluntary agreement” to sex across the country, and several states have since introduced affirmative consent laws.
There is disagreement among activists over whether consent must always be a verbalised “yes”. Some worry that applying the “ask first and ask often” rule to real-life situations could get ridiculous. “Do I have to ask to move an inch closer?” one student wondered.
Spanish lawyers say non-verbal signals count as consent if someone is “actively taking part and enjoying” themselves.
But the difficulties of relying on body language were highlighted by the case of comedian Aziz Ansari. The woman who accused him of unwanted advances said he “ignored clear non-verbal cues” that she was uncomfortable. He responded that he was “surprised” as their encounter seemed “completely consensual”.
Is “yes means yes” the best policy?
Absolutely, say some. The absence of a clear “no” doesn’t mean a person is enjoying themselves. A victim may be scared of angering their attacker by resisting, and it is common to freeze when your body feels threatened. Sex is about having fun with a partner who has chosen to share the experience, and putting this into law is a big step forward.
It’s impractical, argue others. Realistically, couples aren’t going to stop to ask before every sexual act. It would be awkward and unnatural to insist on it. Everyone should be able to express what they want in sex, but this is going a step too far. Besides, it’s hard to see how it could lead to more convictions because it’s still one person’s word against another’s.
- Should the UK introduce a “yes means yes” law?
- Should consent always be expressed verbally?
- What is consent? Write down a definition in your own words and discuss it with your class.
- Research the new law in Spain. Write a one-page essay weighing up the pros and cons of the legislation.
Some People Say...
“We talk about how many women were raped last year, not about how many men raped women.”Jackson Katz
What do you think?
Q & A
- What do we know?
- The charity Rape Crisis says that “everyone has the right to say ‘no’ to sex, to withdraw or withhold their consent for any sexual act, on any occasion and under any circumstances, regardless of whether they’ve given consent to sex with that person in the past and regardless of whether they’re in a relationship with the other person.” A person cannot give consent if they are under the influence of drugs or alcohol, or if they are underage.
- What do we not know?
- Whether the “yes means yes” rules in Spain and other countries will improve the low conviction rates for rape. The crime is hard to prove because there are often no witnesses. The number of rape reports in Spain rose by almost 30% this year as social awareness has encouraged victims to come forward.
- A city in Spain that hosts an annual bullfighting festival. There have been numerous reports of assault and harassment at the festival in recent years.
- Doctors say that during sexual assault a victim’s body will often freeze or go limp as a natural response to being under threat.
- Affirmative consent
- It is defined as “affirmative, conscious and voluntary agreement to engage in sexual activity.” It is the responsibility of each partner to take measures to ensure they have the consent of the other.
- Aziz Ansari
- A woman who went on a date with Ansari told her story to Babe.net. She says he pressured her to take part in sexual activity despite her repeatedly telling him that she would like to slow down.