Make 'Yes Means Yes' more than policy

Last month California passed a law requiring universities to use affirmative consent standards in cases of sexual assault. Under a standard of affirmative consent, better known as “yes means yes,” both parties must clearly, knowingly and voluntarily agree to engage in sexual activity. The law is a departure from the previous norm of “no means no,” the complement of this policy. More than 1,400 universities have incorporated affirmative consent into their policies, and Duke’s own sexual misconduct policy defines consent as “an affirmative decision to engage in mutually acceptable sexual activity given by clear actions or words.” While many find this definition intuitive, some students find it awkward and serious critics point to issues it creates with quasi-legal burdens of proof.

Why the resistance? One reason is that affirmative consent uproots many deeply-ingrained societal and cultural norms about sex. It holds that consent is something to be granted, rather than assumed in the course of sexual activities. Historically, the onus has been on victims to prove they refused, rather than on the offender to prove that sex was mutually embarked upon. Yet these assumptions are rooted in deeply problematic moral traditions: a culture of misogyny, a sense of entitlement to women’s bodies and a weaker sense of self-ownership for women compared to men. Affirmative consent policies on college campuses jump start a shift towards healthier sexual relations and codify more intuitive moral norms of treating the bodies of others with dignity and respect. But this change must occur not only via top-down policies, but also from bottom-up changes in student attitudes.

On the policy level, an unsolved problem is how colleges can clearly explain the burden of proof in sexual assault cases under an affirmative consent standard. Last year, a government court ruled the University of Tennessee at Chattanooga’s decision to expel a student after finding him guilty of sexual assault under affirmative consent was unfair because it “improperly shifted the burden of proof.” Dissonance between university quasi-legal and state legal procedures must be resolved. Muddying already muddy waters does no good for anybody, no matter how beneficial the policies adopted. This builds upon our previous demands that Duke give transparency to its student conduct sanctioning guidelines and better outline student procedural rights. An explanation of burdens of proof and how the University’s proceedings interact with outside litigation is essential.

At the student level, because affirmative consent requires some students acknowledge and unlearn deeply-rooted ideas of sexual entitlement, the campus community plays a crucial role in fostering a culture of affirmative consent among the student body. Having student-driven, community-based dialogue and education efforts like the ones suggested in yesterday’s editorial works to ensure change happens organically. Top-down impositions are only as effective as the bystanders and peers who make policies into realities.

For potential sexual assault victims or offenders, affirmative consent removes the grey area from sexual situations; it means that for sex to be consensual, participants cannot be incapacitated or anything less than willing to engage in sexual activity. For bystanders who may be unsure about whether to intervene, affirmative consent provides a clear case for action when they notice someone incapable of giving consent entering a sexual situation. For all students, it normalizes mutual respect and open communication as integral parts of sex.

Affirmative consent laws catalyze the drastic policy and cultural changes needed to resolve the sexual assault crisis happening on college campuses. It is time to replace “no means no” with “yes means yes,” and the University has several responsibilities in policy clarification and community outreach to move this change forward.