Recently, the California legislature passed a new law, changing the signal of sexual consent from a yes to an “affirmative” yes.
At first glance this seems like a stroke of genius. This law means that a woman cannot be peer-pressured into having sex, and then have her attacker get away scot-free. In many ways, it appears this new piece of legislation is fool-proof — it seems to clear out the slightly blurry barrier between what could ultimately become rape, and what is merely consensual sex.
It also seems to guard against what one might describe as “inebriated” sex whereby someone might give a “yes” while intoxicated and thus, incapable of consciously making decisions, mainly because it takes a decent amount of brainpower to be able to nod your head affirmatively and provide a verbal yes.
However, this legislation does not manage to clear up the law surrounding sexual consent. If anything, it wades further into the mire that is subjectivity.
What sounds like a resounding “yes” to one person might essentially be a polite (if unorthodox) way of saying no, or vice versa. For example, someone could mumble a “yes”, but someone else could interpret that as a very sure and affirmative “yes.” It could also, of course, be a result of peer pressure or intoxication.
With the subject of rape and sexual consent there will always be a very blurry line between the former and the latter, but there are nonetheless some ways of at least shining a light through this haze. However, simply calling for an affirmative “yes” is not one of them.
Ultimately, a clearer, even more affirmative piece of legislation is necessary, possibly a specific verbal exchange students at parties must undergo before anything else happens. Something that manages to almost completely safeguard against a reply that is the product of intoxication or peer-pressure, something possibly wordier.
I understand that in the heat of passion, no one is going to be willing to spend the next ten minutes discussing legal minutiae: “I really want to have sex with you, but first could you sign this contract?” But in some instances, such as at parties, a “better safe than sorry” sort of approach should be taken.
Although this might sound comical, and slightly ridiculous, something along the lines of: “I [insert name here] do wish to have sexual intercourse with [insert name here]”. If it seems that person is either not conscious of their own name, or is widely off the mark with the other person’s name, sex should not take place.
There will probably never be a law that successfully guards against peer pressure, one could always pass legislation creating safer environments in colleges, but this would still not completely regulate against peer pressure, which will always exist.
As further efforts are made to cement the division between rape and consent, which will ultimately create safer and more productive learning environments in colleges throughout California.
