The Dallas Morning News has published a balanced opinion piece allowing a representative for both sides of the “yes means yes” debate to present their ideas. Samuel R. Staley, a research fellow at the libertarian Independent Institute, argues that the approach is “unreasonable and unworkable.”
Staley notes that relationship counselors recognize the need to build trust within relationships, and that trust and intimacy is built through “verbal, nonverbal and behavioral actions,” which are sometimes legally ambiguous. But, Staley argues, “yes means yes” policies presume that sex is “unwanted and destructive,” codifying into law rules that make building trust difficult.
Indeed, it’s difficult to build trust when every step of every sexual encounter – even between committed partners – requires a verbal “yes” in order to be considered consensual. One wrong move, one forgotten question and the encounter may be defined as rape, unless no one reports it.
Staley also raises the important fact that “[m]ost rapes and attempted rapes are not committed by perpetrators who would be stopped because the person they’re with has not verbalized a yes.” Normal human sexual activity does not involve question-and-answer session foreplay, meaning “yes means yes” policies would criminalize normal human interactions.
“Moreover, ‘yes means yes’ legislation effectively criminalizes millions of actions by individuals and partners that do not lead to rape or sexual assault,” Staley wrote. “Rape and sexual assault still occur at unacceptably high levels, but the solution is not to criminalize normal, healthy behavior.”
I’ve written about this aspect of “yes means yes” before. Under these policies, all sex is rape unless one follows the rules set forth under the policy. And even then, unless one can prove they obtained consent under these policies, the existence of a “yes” every step of the way is meaningless.
Belinda Guthrie, the Title IX coordinator at Santa Clara University, wrote for the proponents of “yes means yes.” She said the policies are necessary because schools have in the past failed to address sexual assault.
“Policies not based on this standard require evidence of force or resistance by the complainant in order for a college or university to conclude that consent was not sought or obtained,” Guthrie wrote.
Yes, curse the old way of doing things, when evidence of an attack was required!
Guthrie points out that critics of “yes means yes” policies claim they shift the burden of proof onto the accused, will increase false reports and do nothing to solve “he said, she said” accusations. She then goes on to discuss the need for fair and “equitable” procedures for colleges to adjudicate sexual assault. But, she argues, such procedure improvements shouldn’t force schools not to adopt “yes means yes.”
She does acknowledge, however, that without fair procedures (she avoids the term “due process”), the critics of “yes means yes” will be proved correct.
So far, the critics seem to be sadly correct.
