Making Sense of “Yes Means Yes”

Posted in: Criminal Law

In September of this year, California Governor Jerry Brown signed into law a bill that changed the meaning of sexual consent for undergraduate campuses whose students may receive financial assistance from the State of California. The law includes a variety of important provisions, but for purposes of this column, I will focus on one: the law defines rape by the absence of an affirmative indication of consent from the alleged victim (rather than by the presence of either verbal or physical indicators of non-consent). In this column, I will discuss this aspect of the new law and evaluate some of the arguments that have been offered in opposition to it.

Why Change the Law?

In May of this year, the U.S. Department of Education’s Office for Civil Rights (“OCR”) released a memo listing fifty higher education institutions with open Title IX sexual violence investigations. This means that these schools’ responses to sexual abuse and violence on campus have come under suspicion and might well be actionably inadequate. The institutions included both Harvard College and Harvard Law School, a proper source of embarrassment for those of us who matriculated at either institution.

Title IX of the Educational Amendments Act of 1972 is the federal law prohibiting sex discrimination in educational institutions. One form of sex discrimination is institutional indifference or inability to respond properly to sexual assault on campus. Accordingly, the apparent failure of so many colleges to effectively prevent or otherwise address the large number of sexual assaults that take place on college campuses indicates a problem, one that might perhaps be amenable to resolution through changes to campus codes of conduct.

The California law passed earlier this year represents one response to this disturbing state of affairs in which institutions of higher learning have evidently been either unable or unwilling to protect the sexual safety of their students. To the extent that women (disproportionately the victims of sexual assault outside of the prison context) cannot safely navigate their college careers without fear of sexual assault and other sexual misconduct, their experience of education cannot be accurately characterized as equal to that of men. Changes in campus codes, required by the California law and urged by the OCR, then, result from a salutary impulse to improve the lives of the women and men who may be vulnerable to sexual predation.

Yes Means Yes: What Does It Mean?

In one sense, it might seem an unimportant matter of semantics whether a code says that “no means no” or that “yes means yes.” In “Take Back the Night” marches against acquaintance rape that took place when I attended college, the chant was, “However we dress, wherever we go, yes means yes and no means no.” So if both of those things are true, why should it make a difference whether a campus code defines rape in terms of the absence of “yes” or the presence of “no”?

One answer is that “yes means yes” provides a default setting of “no.” That is, if a man and a woman are alone in private, the “yes means yes” approach provides that if the woman sits silently and does not affirmatively indicate, by either her words or her conduct, that she is interested in having sex with the man, then the man is prohibited from engaging in sexual conduct with the woman (or, perhaps more accurately, upon the woman, since she is by hypothesis not participating). I say “the man” and “the woman” here because this is the most common scenario in which allegations of sexual assault arise, but the same holds true for situations involving two males, two females, or a man and a woman where the silent and inactive member of the couple is the man. It also applies to groups of more than two people.

Okay, readers might say, the default setting is “no.” But why does a default setting of “no” matter? As then-Professor and now-Dean Michelle J. Anderson very ably explained in her 2005 article, Negotiating Sex, a woman who has previously been traumatized or who feels like her will is irrelevant to her partner will sometimes freeze with fear and find herself unable to say “no” or otherwise to actively resist what is happening. Though we speak colloquially of a “fight or flight” response to threats, a third alternative in the emergency repertoire of humans and other animals is “freeze.” If a woman finds herself in this situation, then a “no means no” legal standard fails to do what she needs—to demand that her partner refrain from touching her and check in to make sure she is comfortable with his advances. If she stares blankly into space or says nothing at all in response to his inquiries, then the right thing—the non-rape thing—for him to do is to leave her alone.

Even if the woman is, moreover, capable of saying “no” or of indicating her lack of interest through physical or other nonverbal resistance, a “yes means yes” standard effectively conveys to her would-be partner that she should not have to resist, that engaging in sexual relations is something that individuals in couples choose to do with each other, not something that sexually aroused individuals get to do to other, unmoving, individuals, so long as the former encounter no active resistance from the latter. The “yes means yes” approach says something affirmative about what sex between consenting adults is really about—it is an interaction between two (or more) people, absent some express, mutually-agreed-upon departure from this model.

By contrast, the “no means no” approach effectively conveys the message that when two people are in each other’s company voluntarily and in a potentially romantic context (such as a date), one of those people may simply presume the sexual consent of the other, so long as the other does not actively rebut that presumption through words or conduct. If a woman is staring into space or simply looking at her date, for example, the date—under a “no means no” approach—can undress the woman and insert either a finger or his penis into her vagina—without ever receiving any sort of invitation or indication of desire from her. Simply going out on a date with him hands over the keys to her own sovereignty over her bodily integrity unless and until she says, “Stop” or “No, I don’t want to do this.”

The message that passivity is consent not only reflects a stereotype about the active and passive roles of men and women in sex; it may prescriptively encourage men to think about passivity as an invitation and to avoid talking with their partners to make sure everyone is on board with what is happening.

In a “no means no” world, then, the “no trespass” sign that ordinarily accompanies every person navigating the world is removed from people who are on a date and alone with a partner, and the woman (or the more vulnerable member of the couple, who may or may not be a woman) is now “open for business.” This presumption conforms disturbingly to the idea that rather than having the question of rape revolve around whether she does or does not consent to sex, a woman who wants to avoid being subject to unwanted sex must carefully plan where she goes, how she dresses, and with whom she spends her time, not just as a practical matter but as a matter of law. It should not, however, be the case that in potentially sexual situations, the job of the less active member of a couple is to proactively stop the other member of the couple from imposing himself upon her sexually.

The requirement that sexual partners obtain “consent” quite logically requires that something affirmative be obtained. The absence of complaint—particularly in a world where many people are traumatized and feel unable to assert their interests when they collide with someone’s else’s desires—is not consent. It is just nothing, and nothing alone does not justify sexual intercourse.

Avoiding Rape Versus Proving Rape

One common critique of the “yes means yes” standard is that if a victim must say yes or otherwise affirmatively indicate an interest in having (or a willingness to have) sex before sex take place, then this will mean that the burden of proof in a rape case effectively shifts from the person complaining of a crime to the person defending himself against an accusation. As one example, Florida International University Professor Emeritus Gordon Finley, an advisor to the National Coalition for Men, claims that under a “yes means yes” approach, “it is virtually impossible to ‘prove’ affirmative consent for a man.” He continues that “[m]en are presumed guilty and have to prove their innocence . . . as opposed to the criminal justice system in which men and women are presumed innocent and must be proven guilty.”

Finley’s suggestion, which I have heard from others as well, is mistaken for a variety of reasons.

First, the definition of an offense has nothing to do with the burden of proof. The definition simply tells everyone (including potential perpetrators and potential victims) what the law requires in order for a sexual encounter to be called “consensual” and, on the contrary, what it requires in order for the encounter to be classified as a rape or sexual assault. If the campus code places the burden of proof on the accuser, then the burden remains on the accuser, regardless of how the misconduct is substantively defined.

Under a “yes means yes” framework, then, where the burden of proof is on the accuser, the accuser must persuade the fact-finder by whatever standard of proof (whether “beyond a reasonable doubt,” “clear and convincing evidence,” or a “preponderance of the evidence”) that the events in question happened in the way that she says they happened and that, specifically, the accused engaged in sexual conduct with the accuser in the absence of either verbal or behavioral indications of interest in having sex. If the factfinder thinks there is a 50-50 chance that the complaining witness said “yes,” for example, and a 50-50 chance that she said “no,” then the factfinder will find for the accused, given that the burden is on the accuser. The definition of rape thus leaves in place the perpetrator’s presumption of innocence.

Second, in order to obtain a finding of guilt, given that the burden of proof is on the accuser, it will likely be necessary for the complaining witness to provide testimony. That is, she cannot just sit back and say nothing, as could a party whose opponent bears the burden of proof, because she must convince the trier of fact that things happened in the way that she claims they did. Once she testifies, of course, there is some pressure on the defense to offer a counter-narrative, but that is hardly unique to the sexual assault context—once the prosecution has presented its evidence of the defendant’s guilt, the defense will always feel some pressure to offer evidence pointing in the other direction.

An accuser’s testimony that the accused engaged in sexual intercourse (or some other sexual interaction with her body) without any affirmative consent, whether verbal or nonverbal, from her, is itself evidence. It is evidence of the perpetrator’s guilt on the basis of which a factfinder may and ought to be able to conclude that the things she described did indeed occur. Again, in all criminal cases, juries are empowered to find a defendant guilty on the basis of eye-witness testimony by a victim, and we do not ordinarily characterize this fact as either unjust or as shifting the burden of proof to the defense.

Critics of acquaintance rape prosecutions more generally (as well as of the more demanding “yes means yes” approach to consent) frequently speak of a woman’s testimony in an acquaintance rape context as somehow inherently unworthy of belief or as “less than” the sort of evidence that usually generates fact-findings in a court of law. Critics use the expressions “swearing contest” and “he said/she said” to manifest their skepticism about how a fact-finder could possibly draw the conclusion that a rape really happened on the basis of mere testimony from a victim that it did, opposed by testimony from an accused perpetrator that it did not.

If we look closely at the motives in place as well as at the typical resolution of disputes in court, however, we can see that this “swearing contest”/”he said/she said” talk represents a thinly veiled expression of sexism that harks back to misogynistic ideas about women from centuries past. When a woman testifies that a man had sex with her without her consent (whether that lack of consent takes the form of a vocal “no,” or of silence in a “yes means yes” regime), she has given the factfinder evidence of a crime that, unlike other crimes, is likely to cause shame and embarrassment to the victim reporting the offense. As a general matter, then, there is no positive benefit—and much detriment—that comes to a woman from testifying that a man has raped her. Lying about rape is thus a bizarre and peculiar thing to do, and there is no structural reason to expect such lies to be uttered on a regular basis in court.

For a man who stands accused, by contrast, there is plenty of reason for him to say he did nothing wrong, regardless of what the truth might be. That is, like all criminal defendants, the accused in a rape case has a powerful motive to claim that he is innocent. This motive is—in most criminal cases—so well understood by juries that according to a study published by R. L. Wissler and M. J. Saks back in 1985, juries do not consider a defendant’s prior conviction for perjury especially informative in assessing his credibility. According to the study, the jury generally regards the credibility of a criminal defendant—structurally driven to say “I am innocent” no matter what happened—as so much lower than that of other witnesses in a criminal case that proof of his character for veracity has little to offer in terms of exposing the truth about his testimony.

In short, if we want to call the dispute between a rape complainant and a defendant denying the accusation a “swearing contest,” it is—all things being equal—a properly one-sided contest between a woman who has no structural reason to lie, and a man who has every reason to say “not guilty” about himself, irrespective of what really happened.

Yet I routinely run into otherwise sensible people who cannot seem to accept that a woman’s testimony that she was raped is strong prima facie evidence that she was in fact raped. They similarly cannot appreciate the fact that a man’s testimony that he committed no rape is weak evidence of his innocence. People do sometimes falsely accuse people of rape, just as people sometimes falsely accuse people of other things, but there is no reason—other than rank sexism—to systematically distrust rape accusations or to assume that the accuser and the accused in an acquaintance rape case are equally likely to be lying.

In most cases, testimony is a crucial part of determining what occurred in a contested case and whether what occurred did or did not violate the law; a sudden skepticism about testimony in the context of rape is therefore unwarranted.

The “yes means yes” law, moreover, has a second aim. It is not solely a tool for determining what happened once there has already been a rape accusation. It has another important function that has been largely ignored by critics of the new law. That function is to teach college students what it means to have a consensual sexual relationship with another individual.

When one individual is interested in having sex with another, the law tells the former that the desire to have sex is not enough of a reason to go ahead and touch another individual. There is another person whose autonomy, interests, and wishes must also be taken into account, and the best way to do that is to look for affirmative indications of sexual interest (or ask a question) rather than simply viewing the other person as an obstacle course to be overcome. It may be the case that some women who would not have even known to call what happened to them “rape” will, when asked, “is it okay if I go ahead?,” say “actually, it isn’t.” The California law and the campus codes that it requires, if followed by people embarking on sexual experiences, will accordingly give women (and men) the space in which to say when they are truly interested in a sexual engagement and to safely withdraw into their own thoughts when they are not interested but prefer to avoid being confrontational with someone who appears committed to his sexual objectives.

“Yes means yes,” if taken to heart by the men and women on college campuses, will lead people to take responsibility for checking in with a partner rather than surrendering themselves to what they may believe without any evidence to be a mutually desirable sexual encounter. People tend to be motivated to draw conclusions that allow them to do what they already wanted to do, a motivation that could easily lead an aroused person to imagine that the stillness and silence of a partner somehow evidence a desire to have sex. “Yes means yes” represents a positive intervention in the bedroom (or dorm room), one that informs initiators of sexual interaction that there is someone else in the room with them who must affirmatively consent before permissible sex can happen. Perhaps, if things go well, we will see fewer after-the-fact complaints, because couples will be led to have actual conversations about what each person wants before it is too late.

Posted in: Criminal Law, Education

Tags: Legal