California just passed a new law (that applies to most college campuses) that defines sexual assault as a lack of affirmative consent. That means consent cannot be assumed from a person’s silence or intoxication. Thomas Millar at Yes Means Yes recently posted an extensive analysis of the law. In Canada, this same basic model has defined sexual assault in federal criminal law since the early 1990s. (It gets a lot right in theory, but in practice many prosecutors, judges, and juries still rely on racist and sexist rape myths). Around the same time, Antioch College was nationally ridiculed for mandating a policy of explicit verbal consent. In 1993 the New York Times was sympathetic to the effort but cautioned:
To people used to associating sex with romance and romance with mystery, these guidelines look stifling. Each and every time? … Adolescents will always make mistakes — sometimes serious ones. Telling them what’s unacceptable, in no uncertain terms, is fine. But legislating kisses won’t save them from themselves.
More than 20 years later, I can see some real progress in the NYT’s reaction:
[The new California law] is not radical. Its underlying message is that silence does not necessarily equal consent, and that it’s better to be certain that sex is desired than to commit assault. Sexual assault is rampant on campuses, and colleges have failed to respond adequately. “Yes means yes” won’t make these problems disappear. But the new standard is worth trying.
So, twenty years from skepticism about “legislating kisses” to “this is worth trying.” As Millar writes:
This Is Not A Revolution In Practice (But I Can See It From Here)