Lately, young people all over America are hearing that the long-espoused sexual safety mantra, “no means no,” is antiquated and obsolete, and the new standard of consent is “yes means yes.” Unfortunately, none of these kids are getting a good explanation of what “yes means yes” actually means. Despite this uncertainty, the state of California recently codified this new “affirmative consent” benchmark with an amendment to the student safety portion of its Education Code, with other states likely to follow suit.
California’s new law specifically states that silence, lack of protest, and lack of resistance do not mean that a person has consented to a sexual act or behavior. Instead, affirmative consent must be ongoing throughout a sexual encounter. So apparently when kids are fumbling around in their freshman dorm room they have to say things like, “Would you mind if I stick my tongue in your mouth?” and, “Is it acceptable if I touch your breast?”
I’m not sure how I feel about this. As a sex therapist who has worked with sex addicts and sexual offenders for more than two decades—recently sounding the alarm about growing numbers of teens reenacting the highly objectified and sometimes nonconsensual sex they see online because they think that’s how sex is supposed to be—I am happy that adults are taking a more active role in helping young people understand the difference between real world sex and the deeply fantasized pornography they find online. Any time we can have an open, honest, nonjudgmental conversation with adolescents about any aspect of growing up, especially something as important but under-discussed as sexual experimentation/exploration, we’re doing a good thing. On the other hand, as one teen asked me, “Does ‘yes means yes’ mean my girlfriend has to say yes every ten seconds, and if she doesn’t I’m a rapist?”
Advocates of affirmative consent argue that “no means no” has fallen short of its goal, especially in cases where one person is impaired (usually via drugs or alcohol). They claim that an impaired person’s inability to say no creates a gray area leading to and possibly excusing a lot of questionable behavior. That said, can that same drunk/high person make an informed decision to say yes? More importantly, in a court of law does “yes means yes” suddenly push the burden of proof onto the defendant rather than the prosecution? And if it does, does that violate the burden of proof standards established by the 5th and 14th amendments? (See: In re Winship, 397 U.S. 358, 364 (1970), and Sullivan v. Louisiana, 508 U.S. 275 (1993).)
So what does “yes mean yes” really mean? How can we fully explain this concept to adolescents grappling with their first feelings of romantic and sexual attraction? And remember, teenagers are by nature impulsive, continually making all sorts of mistakes. For them, trial and error is a natural part of growing up. It’s how they learn. About everything. Including sex. As adults, all we can really do is give them accurate information and hope for the best, knowing they’re still going to screw up.
A recent NY Times article on this topic followed Shafia Zaloom, a health educator at the Urban School of San Francisco, as she told a classroom of 10th grade students that consent from the person you are kissing (or doing more with) is not simply silence or a lack of protest. The article says the students “listened raptly, but did not disguise how puzzled they felt.” Zaloom says common questions she gets include: “Can I have sex when we are both drunk?” and, “If I hook up with a girl and the next day she decides she didn’t want to do it, then what?” Zaloom further states that most of the questions she hears do not have a straightforward answer, explaining, “We’re trying to show them very explicitly that sex has to include a dialogue, that they have to talk about it each step of the way.”
Even Kevin de León, sponsor of the new California law, admits that “yes means yes” is as much about changing the culture as changing the law. He states, “What we want to create is a standard of behavior, a paradigm shift as much as a legal shift.” But what does this “paradigm shift” mean for kids who are expected to abide by a standard that even educators and advocates can’t adequately explain? Probably it means we’re moving from the gray area of “no means no” to the gray area of “yes means yes.”
Obviously, all of these efforts are well-intentioned, hoping to provide sexual education and safety for young people (and others). I’m all for that. As stated above, simply having an honest conversation about sex and sexual activity helps adolescents a great deal. Even if adults don’t have an answer to every question, we can at least let kids know that if one of them wants to take what they’re doing to another level, it’s a good idea to pause and ask their partner if that’s OK, and they should be prepared for their partner to say “Yes” or “No” or “Not today” or even “I’m not sure. Let’s talk about it first.”
Whatever standards we eventually settle on regarding sexual consent, we need to understand that kids are kids. They try things and sometimes they like them and do them again; other times they regret them and cross them off the list (at least temporarily). Moreover, no matter how hard adults work to educate and protect young people, they are still going to mostly learn by trial and error. Even with sex. And that’s a fact.