After my previous posts that you can see part one, two, three, and four, I thought I should offer some insights about affirmative consent. Affirmative consent—sometimes known as “yes means yes” consent—has gotten a lot of traction lately. What I want to do is to talk about the different variations of affirmative consent, but also suggest that some variations seem more suited than others, especially given what I had to say about consensual realism in my previous posts.
What surprises me is that affirmative consent is hardly written by philosophers and more so from lawyers. In a way, it makes sense since if affirmative consent becomes the standard, then we must see what it legally entails. However, I think this issue is ripe with philosophical investigation. I only offer a small outlook of what could be done with affirmative consent.
The assumed standard position when it comes to sexual consent has been “no means no,” which has the intuitive appeal that if someone does not want to engage in any sexual encounter, one simply must say “no” or show a “no” through body language. Let us call this the standard model of consent, which has had some criticism lately.
First, a lack of “no” translates as “permissible to proceed.” I discussed Pineau before. She has pointed out that our standard narrative views male sexuality as aggressive, whereas women sexuality has been seen as passive, where sex just happens to them. In the standard scenario, a woman may not feel comfortable engaging in sex, but might also feel uncomfortable saying “no.” Women are taught to acquiesce to sex: they do not actively choose to have sex, but they do not actively choose to not have sex either. Or if she does say “no,” a man may try again until the “no” is no longer in play.
The second problem is if consent is contested, it puts the onus on the victim (usually the woman) to prove she said “no.” The default is that we are all consenters and to opt-out, we say “no.” However, since women are considered passive, she may fear saying “no” and stay silent to avoid the repercussions of a “no.” Thus, one implication of the standard model is that the silence means “yes.”
Opposed to the standard model is an affirmation model of consent, sometimes known as the “yes means yes” model. Under this framework, both partners must obtain a “yes” from each other. The “yes” to opt-in as it were can be verbal or non-verbal, where some type of communication is necessary for the sexual encounter to be ethical. The affirmation can be highly regulatory, such as a contract, or it could be broader where the people must be aware of the context and perhaps simply stop and ask. The validity involved can range from “enthusiastic consent” to paying attention to non-verbal bodily cues to determine whether to stop or to continue. Simply missing a verbal “no” or physical restraint does not automatically constitute consent.
Many proponents find the affirmation model better because the partners involved need to be in tune with each other’s wants and needs. Obtaining the “yes” ensures that the people know each other well, or at least have an in-depth conversation about what the other’s wants and needs are.
“But hold on,” you might say. “It seems that affirmative consent is synonymous with consensual idealism. Therefore, if you endorse affirmative consent, don’t you have to endorse consensual idealism?” Well I do endorse affirmative consent, but I don’t consider it synonymous with consensual idealism. After all, affirmative consent can be compatible with consensual minimalism. One can still obtain a “yes”—even enthusiastically—without explicitly focusing on the other’s wants and needs. Consensual minimalism and idealism tells us the content of consent where the focus is on the ethical portion of consent; the affirmation model tells us when it is permissible to proceed by focusing on how a token consent can be communicated. In short, consensual minimalism and idealism tell us what consent is; affirmative consent gives us the conditions to make consent valid. The affirmation model suggests that there are at least two people involved in making the decision instead of one doing the instigating and the other being the instigatee. Moreover, the onus is now on both actors to ensure there was a “yes” rather than relying on a proof there was a “no.” This model does not erase all the problems of whether someone consented or not, but it gets rid of various defenses used by men to prove there was consent: “She didn’t say anything so it was ok,” “She kissed me back so it was ok to go forward,” etc.
Are there any problems with affirmative consent? There have been some criticisms and I’d like to tackle them:
- Affirmative consent must be verbal. A common critique against affirmative consent is that the “yes” must be entirely verbal. By requesting a “yes” for each progression of the sexual act, the pleasure could be mitigated thereby making the sexual act not as enjoyable. After all, part of what makes sex pleasurable, according to the critique, is what is unsaid. Constantly stopping and asking for permission can disrupt the flow of sex and perhaps make the sexual act awkward. In response to this, Schulhofer offers a way to have affirmative consent without a constant disruption. His solution is to understand consent as contextually sensitive, which can include silence and passivity. And while silence and passivity by themselves are not treated as consent, “they are forms of conduct, and all of a person’s conduct should be taken into account.” Thus, Schulhofer defines consent as performative rather than merely verbal. The point, however, is affirmative consent changes the default in that a “yes,” and not a “no” or silence, must be the moral transformation that moves from a duty to restrict oneself to interfere with another person’s rights toward permission to engage with the other. It is true non-verbal cues are harder to interpret than a verbal “yes,” but the way to correctly read the body language is to be more aware of the relevant facts of the context and people can gain this through education and experience. In a way, it is a type of phronesis to correctly acknowledge when someone is saying “yes” non-verbally, where they have enough knowledge to make good judgements about sexual matters. What counts is how desire manifests in the occurrence of the sexual act. It is to recognize a desire for desire rather than simply desiring to have sexual contact. Otherwise, sexual encounters risk becoming “unjust.”
- Affirmative Consent Still puts the Onus on the Woman. With affirmative consent, the focus may be on the woman’s autonomy but, again, nothing is necessary coming from the man. Either way, it is up to the woman to give the signal whether the sexual engagement can proceed or not. Thus, gender stereotypes are still upheld in that women are the gatekeepers of sexuality and men must find the right combination to unlock the gate. Men just need to “work out a yes” if needed. If there are no changes on how the genders relate to each other, the institutional system is still in place which has the process favoring men, whereby men could manipulate a “yes” to continue with the sexual transaction instead of simply thinking silence is a “yes.” As Hlavka puts it, “[p]lacing responsibility on women and girls to ‘just say no’ and excusing boys and men as they ‘work a “yes” out’ works to erase institutional and structural responsibilities.” It is just one extra move needed, but it is still within the framework that favors men. I do find this a problem. In many ways, this is why I think consent is not sufficient for sexual conduct. If consent is all about getting a “yes” out, then it still reinforces and hardly challenges heteronormativity. In a way, I think a route out is to see what underlies consent. I’ve mentioned my previous posts that I think some type of virtue ethics is undergirding sexual autonomy and sexual consent, which I may have to save for another post.
Overall, I have looked at what affirmative consent is and how it’s different from other types of sexual consent. I consider affirmative consent as the way to communicate a token consent rather than being a category of giving/receiving consent. Affirmative consent advances the cause to mitigate sexual misunderstandings and sexual assaults. But it does leave room for ambiguity. When most people have sex, we hardly explicitly garner a “yes” or state a “no.” Instead, we are searching for clues and giving clues to see if it is ok to proceed or to slow down, or to stop. Most sexual initiations happen non-verbally, and this is important to know and address. If many sexual interactions happen non-verbally, then we need to teach consent that is based on giving/receiving clues. And yet, if it happens non-verbally, students also need to be taught how to use their words comfortably when the time comes. In another post, I would like to give some of the specifics of affirmative consent and try to show that there is another ethical foundation that underlies consent.