The Problems with “Yes Means Yes”

“Yes means yes” the controversial new legislation implemented in California, is analyzed in a Slate article.

“Yes means yes” is the latest campaign to curb sexual assault on college campuses. Affirmative consent is defined under the California law as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” Under this definition, a silent partner does not give consent—he or she must give some type of verbal or physical consent. The California law requires universities to evaluate during campus adjudications whether the accuser gave affirmative consent. Universities must adopt this new standard or risk losing state funding.

In a TIME opinion piece, journalist Cathy Young argues that affirmative consent shifts the burden of proof to students accused of sexual assault while providing an unclear definition of what affirmative consent actually means. She notes that nonverbal cues showing consent are present in consensual activity, but interpreting those cues after the fact would be difficult in a campus adjudication context. She states that even “advocates of affirmative consent are admitting that they’re not sure what constitutes a violation.”

Some have called the standard unreasonable and say that it would be difficult to implement in practice. The Foundation for Individual Rights in Education said, “It is impracticable for the government to require students to obtain affirmative consent at each stage of a physical encounter, and to later prove that attainment in a campus hearing.”

The Foundation has also called the standard unjust, noting its vague definitions of consent are impossible to apply fairly and equally.

The “yes means yes” policy is spreading. The State University of New York system adopted the policy across its 64 campuses. The Governor of New York has since called for private universities in the state to adopt the same standard. The Ivy League universities, with the exception of Harvard, have some version of affirmative consent.

The Washington State legislature has yet to consider affirmative consent legislation.