Friday, March 26, 2010

What Is Affirmative Consent?

On the Yes Means Yes blog where affirmative consent was being discussed, several people in the comments argued against this standard by claiming this standard would criminalize most consensual sex and would be used as a tool of oppression.

This assumption seems based on the idea that affirmative consent is limited to a dry mechanical context when the actual concept of affirmative consent is much richer and not at all foreign to how we understand consent in most other contexts and how we live our lives and even how we enforce our non-sex crime criminal statutes.

We understand that when people are consenting they are indicating that they want something or are willing to have that something and that any expression of agreement is free of duress. If a stranger grabs you and says, "Gimme your wallet," we understand that tossing your wallet is not an expression of affirmative consent. We understand the threat nullifies affirmative actions even though the threat is not spoken. We also understand that duress is judged by the perception of the person who complies. If a mugger says, "I would have run off after another sucker if he said no," we understand that this doesn't turn the interaction into a consensual one even if this mugger is being truthful.


In short, there's nothing inherently oppressive about the concept of affirmative consent. If sex was truly consensual from the perspectives of all involved then nothing changes under an effective system of affirmative consent. However, when people approach sex the way that mugger approaches other people for money then this concept will not be one they will want to embrace or want to see used in the enforcement of sex crimes statutes.

When people who resist looking at consent from the perspective of the other person claim that determining what the other person wants or will freely agree to sexually is a hopeless mess, the response they often get is for them to stop guessing and to explicitly verify consent. This is often taken as meaning that the only way to determine affirmative consent is repeatedly make specific verbal requests and to get specific verbal agreements.This isn't true, and as the mugger example shows, asking a question and getting a verbal positive response doesn't always mean there was affirmative consent.

We understand why this is so in other contexts but in the context of sexual interaction this is often presented as proof that affirmative consent is unworkable. An easier set of terminology for how affirmative consent works to determine the dividing line between truly consensual sex and truly non-consensual sex and which doesn't confuse people with false positive responses are opt-in and opt-out.


Affirmative consent is a serial opt-in system that allows an opt-out at any time and which always returns to opt-out status whenever someone is not capable of opting in or of freely expressing the desire to opt out. Affirmative consent is non-transferable. If someone wants to opt-in to something which by default is opt-out they need to clearly negotiate their personal boundaries.

This is clearly different from the mere presence of the word yes. This is a standard which maintains a person's freedom and requires the unending respect of other people's freedom. Respecting other people's freedom at all times is more complex than continuing until a no or taking a yes as a blank check, but this complexity is not a valid excuse for failing to respect other people's basic human rights even during sexual activity.

No social status or label nullifies the need for genuine affirmative consent.


Opting in doesn't require a document as many opponents of affirmative consent claim but it does require a process of respectful learning. With an opt-in/opt-out system there is no guesswork or assumptions about consent existing in the absence of an obvious opt-out. Mixed signals always means the opt-in hasn't happened. In this system a document freely signed giving another person fixed rights will always be superseded by the right to opt-out and any document not freely signed is meaningless.


For anyone who has wanted sex but who has not wanted to opt-in, this system may mean being prompted for explicit feedback from someone who doesn't want to risk being on the wrong side of the law by reading too much into passivity or it may mean others will simply walk away. Those who cannot bring themselves to opt-in may not get the sex they want. This is a better alternative than allowing rape so that all those passive willing people get sex every time they want it.


Another argument against an affirmative consent standard is that the ideas behind this model cannot be integrated with the law. But they already have been in some jurisdictions.

Minnesota's criminal statute uses this affirmative definition of sexual consent:

(a) “Consent” means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act.

(b) A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act.

(c) Corroboration of the victim’s testimony is not required to show lack of consent.
Without (c) most rapes would be treated as if they were legal and would give rapists a clear path to getting away with rape.

Since the complete working of the criminal justice system go far beyond what is written in the statutes this change in definition is just a beginning, but we need to start and keep moving forward with respect for the basic human right to have our sexual autonomy respected at all times.

So much of the history of how people and the law have looked at sexual consent have viewed a person's actual willingness as irrelevant. This must change if we are serious about preventing sexual violence.

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posted by Marcella Chester @ 11:04 AM   14 comments links to this post

14 Comments:

At March 26, 2010 11:37 AM, Blogger Melissa said...

Is that MN law new? (Or new-ish?) If so, has it affected convictions? I'm curious.

 
At March 26, 2010 12:18 PM, Blogger Marcella Chester said...

Melissa,

No, this definition isn't new and has been on the books in MN at least since 1997. This definition has likely contributed to convictions since it gives juries clear instructions about what does not count as consent.

This change was made along with many other efforts in Minnesota to better protect sexual assault victims who were previously unprotected so it's hard to know the exact impact of this 1 change.

 
At March 26, 2010 3:00 PM, Blogger Julian Morrison said...

"In this system a document freely signed giving another person fixed rights will always be superseded by the right to opt-out"

Yes! Absolutely. Thais is why the "signed contract" thing is worse than just a red herring. A contract is exactly the opposite of affirmative consent - it's a legally backed agreement designed to stop you from changing your mind. If consent were a contract, once you signed it you'd lack the right to say "no".

 
At March 26, 2010 4:13 PM, Blogger Marcella Chester said...

Julian,

I'm glad you made that point directly.

An Oklahoma City man was charged with kidnapping and dv against a woman he had sign a sexual contract. The DA said that what happened went beyond consent.

http://www.news9.com/Global/story.asp?S=12190076

 
At March 27, 2010 7:09 AM, Anonymous gidget commando said...

For the love of Maud, why affirmative consent is such a difficult idea for people to grasp is beyond me.

 
At March 27, 2010 8:11 AM, Blogger Marcella Chester said...

Gidget,

For some people this concept is difficult because it forbids behavior they either approve of or tolerate.

 
At March 30, 2010 9:30 AM, Anonymous Pierce Harlan said...

You are going to want to reconsider what you wrote because I agree with much of it. There is a deeply grounded misunderstanding about "consent" that exists among feminists and MRAs and, yes, even some judges. But the Minn. statute is scarcely revolutionary, or controversial.

Here's the reality: Consent really does mean just that -- consent. Consent to have sex is only valid when the parties manifest their willingness to engage in intercourse. Such manifestations may be evidenced in an infinite variety of ways, far too many to legislate -- by words, conduct, or both based on all the surrounding circumstances. One party's secret or subjective desires and whims are of no moment. The only thing that matters is what is manifested to the other party. Duress (another legal term with centuries of built-up meaning) negates consent. As does incapacity. If a woman is too drunk to decide if she wants to have sex, her "yes" is invalid.

Binding consent cannot be given once and forever, because as contract lawyers know, even "no oral modification" clauses in contracts are not subject to the parol evidence rule and can be negated by estoppel, or waiver, or a novation. Contracts, and consent can always be modified. Again, such modifications can occur in any number of ways. If a woman enthusiastically says "yes, yes, yes" but rolls over to the other side of the bed, it's not reasonable to think consent still exists. By the same token, no one keeps asking, "Do you still consent?" during the act. That is not only childish, it's not how it works. Men and women can tell if the other party continues to manifest consent, and, for example, acting like you want to continue with the act is a damn good indication that consent still exists. Young people need to be taught that the entire act needs to be consensual -- I think that's the important point. Women, especially, sometimes decide that it just isn't right, and the man or boy needs to respect that. He won't like it, but he needs to respect it. The same is true when the man says "get off me a second" or words of similar import. Despite our well-known reputation for wanting sex 24/7, our manifested wishes need to be respected every bit as much as a woman's.

Then there is the inane suggestion I hear time and again that "men will need to sign forms!" That is inane for precisely the same reason as explained above -- consent can always be withdrawn, even in the middle of the sex act, at which time men must must reasonably respond. Consent can't be presumed, but it can be, and is, evidenced by all manner of specific factual circumstances far too numerous to legislate. Consent isn't imaginary, it must be based on some conduct of the other party. Period.

What I have a have a problem with is the silly "affirmative" tacked on at the outset. It adds nothing to the legal term, and suggests that plain old "consent" is somehow not enough. Of course it's affirmative! That's what consent is!

In short, consent can't be tied up in a pretty package or as a one-size-fits-all solution to end rape. Nor can it cure the evidentiary problems in "he said/she said" situations where one party claims rape and the other insists the other party manifested her consent.

Even if you post this (I doubt that you will), please feel free to reject the above, precisely because I wrote it. It is, however, correct. Believe it or not, I do appreciate that young people don't understand these fundamental concepts -- both men and women. I also appreciate that every rape not only hurts the direct victim, but it also hurts every male who is falsely accused of rape -- because every rape lowers the credibility of men who really didn't do it.

 
At March 30, 2010 10:12 AM, Blogger Marcella Chester said...

Harlan, you give yourself too much credit if you believe I take any position simply because you believe the opposite.

I notice that in your response you have toned down your typical anti-feminist rhetoric.

Much of the so called "he said/she said" situations where consent is used as a defense seek to position words or actions which are not freely given consent as if they were legal consent. Maryland v. Baby, for example. If you believe the victim in that case gave legal consent then everything else you say lacks credibility.

In sex crimes using the term affirmative is important because so many people do not view legal consent related to sex in an affirmative way and will refuse to vote guilty if the rape victim doesn't meet their personal standards.

You say the MN definition is not controversial but many people who align themselves with your general position hate the changes feminists helped make to the sex crimes laws since the mid 1970s.

 
At March 30, 2010 10:30 AM, Anonymous Pierce Harlan said...

Mr. Harlan, to you.

The "change" in the law in Minn. mirrors classic contract law concepts. I have long advocated for the objective theory of assent, as exists in contract law, and so on.

 
At March 30, 2010 10:32 AM, Anonymous Pierce Harlan said...

By the way, Ches, you must come over to my site sometime. A lot of people there would love to meet you.

 
At March 30, 2010 11:18 AM, Blogger Marcella Chester said...

Harlan,

It didn't take long for your veneer to begin to slip, did it?

Your views related to rape are not objective at all, but positioning yourself as objective when you have strong biases can fool some people. I notice that you didn't give your opinion on the consent defense in Maryland v. Baby even though I'm aware you know about that case and the following appeared in a FRS post in May 2009:
In 2003, a 16-year-old Maryland boy named Maouloud Baby was convicted of raping an 18-year-old woman in the back of her car. The woman testified that she told the boy he could have sex with her if he stopped when she told him to, but she claimed that when she yelled for him to stop, he continued for five to 10 seconds. He did not ejaculate but withdrew. He and his "victim" drove to a McDonalds, they hugged, she gave him her phone number, and he left. The boy was convicted of first degree rape and other offenses for delaying withdrawal for as little as five seconds. (An appellate court initially overturned the conviction because that court read state law to preclude withdrawal of consent during the sex act, but the state's Court of appeals said that the appellate court was wrong -- consent may be withdrawn during the act, and it remanded the case for a new trial.)

Those other offenses included helping his friend rape this "victim." But none of that is worthy of mentioning when positioning this woman as someone who obviously consented.

Everything which happened prior to this alleged consent including Baby waiting and watching as his friend raped this woman and his threat to rape her if she didn't consent were intentionally omitted from this description. That type of choice is telling.

Compare the FRS version to the testimony contained in the
Maryland appeals opinion.

Since your site False Rape Society is one that regularly promotes falsehoods about girls and women who report rape in the name of protecting people from false allegations and is quick to distort reality when summarizing cases so you can presume those who report sexual and domestic violence to be guilty, I'll decline your invitation.

The tone of your invitation, which those who don't know your bias wouldn't detect, says more about your character than I ever could. The people on your site wouldn't love to meet me, they'd love to attack me, and in fact several of them have already attacked me on your site and we both know it.

 
At March 30, 2010 6:47 PM, Anonymous m Andrea said...

This comment has been removed by a blog administrator.

 
At April 04, 2010 4:40 PM, Anonymous EmilyBites said...

Never been to 'False Rape Society' site but somehow I don't think me and my two Real Live Rapes would be welcome...I mean seriously, what are the chances of one woman being raped twice by different men. She must be one of them Lyin' Hoors, right?

Anyone else feel a frisson of threat in his 'invite'?

Great article, Marcella - affirmative consent is always a tough one to articulate, so thank you for this.

 
At April 04, 2010 5:39 PM, Blogger Marcella Chester said...

Emily,

Thanks. My heart goes out to you as a fellow survivor.

I definitely felt that threatening undercurrent in the invitation and was reminded of warnings to never let someone lure you to a second location.

 

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