Students at Connecticut’s institutions of higher education came to the Capitol Tuesday to express support for a bill that would establish affirmative consent, or “yes means yes,” as a standard in sexual assault cases on their campuses. Affirmative consent isn’t free of controversy, to be sure, but lawmakers must make the difficult choice to approve it.
Affirmative consent is a much-maligned, and much-misunderstood idea. It has nothing to do with requiring byzantine sexual contracts, or pausing every few seconds to get some kind of consent. It is not a way for vengeful women to ensnare men in a legal trap, or a deliberate attempt to undermine due process in criminal law.
What it does do, and this is important, is it shifts the burden of proof from the victim to prove they said no onto both parties to prove they both gave “active, clear and voluntary agreement,” in the language of the bill.
Why does that matter? Here’s some student testimony in support that explains:
“Instead of simply avoiding resistance, as the ‘no means no’ standard encourages, students at schools with affirmative consent policies and education look for sexual encounters that involve mutual enthusiasm and agreement,” said Dasia Moore, Legislative Coordinator for the Yale College Democrats.
Gretchen Marino of Central Connecticut State University https://www.cga.ct.gov/2016/HEDdata/Tmy/2016HB-05376-R000302-Zo%C3%AB%20Grant,%20Student,%20Central%20Connecticut%20State%20University-TMY.PDF”>wrote about her own sexual assault and said, “I am sick and tired of hearing the excuses. Was I under the influence of alcohol? Yes. That in and of itself is NOT consent . . . This act will also support the survivors who have been victimized.”
There are plenty of people who oppose the bill, however. The strongest argument against affirmative consent is that it undermines due process by forcing the accused to prove innocence instead of the victim to prove guilt. This argument suggests that since it’s often very hard to prove whether consent was given or not given, especially if there are no other witnesses, an unfair burden is placed on the person who is accused. That’s not how justice is supposed to work in this country.
I absolutely understand this objection. But is it valid?
Let’s take a look at the bill (HB 5376):
Affirmative consent in the bill is defined as “an active, clear and voluntary agreement by a person to engage in sexual activity with another person that is sustained throughout the sexual activity” that may be revoked by any participant at any time. The major change here is this section that says “it is the responsibility of each person to ensure that he or she has the affirmative consent of all persons to engage in the sexual activity,” and that intoxication, previous or existing dating relationship, unconsciousness or inability to communicate, are no excuse for not obtaining that consent.
That’s the change. It’s a shift from demanding “I said no” as the standard to “I didn’t say yes.”
To me, this makes a huge amount of both rational and emotional sense, for two reasons. First, our bodies are supposedly inviolate. A doctor can’t operate on you without consent, and neither can someone hit you if you didn’t give them permission. We have never set “no means no” as the standard for those situations, and why would we? Imagine waking up in a bathtub full of ice, liver missing, and the burgling surgeon got off scot-free because you never said he couldn’t do it?
What about sexual assault is so different, then?
Specifically, what is so different about heterosexual sex where women tend to be the majority of victims? It might be that society loves to make up excuses for the behavior of men who commit sexual assault. She was drunk. She didn’t say no. She was wearing tight jeans. We were dating. And so on, and so on.
Feminism has a term for this phenomenon: rape culture.
And that’s the second reason why I think this rule makes sense: the deck has been stacked against victims in this unique case for so long, and the risks of reporting sexual assault — such as slander, exposure to the perpetrator, disbelief, and worse — are so great, that any move toward protecting and empowering victims is a move toward long overdue equality.
The benefits outweigh the risks. Students at our college campuses deserve to feel safe. And, like Zoë Grant, I am sick of the excuses. Pass this bill.
Susan Bigelow is an award-winning columnist and the founder of CTLocalPolitics. She lives in Enfield with her wife and their cats.
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