"Yes mean yes" Revisited:
Guides to legally safe sex on campus (Oct. 2015)
The Associated Press reports that Governor Jerry Brown has signed "legislation aimed at making California the first state in the nation to bring" into a number of high schools "lessons about sexual consent required" at California colleges and universities.
This mandate follows action in California and then New York State "to require colleges and universities to apply an 'affirmative consent' or 'yes means yes' standard when investigating campus sexual assault claims. That policy says sexual activity is only considered consensual when both partners clearly state their willingness to participate through 'affirmative, conscious and voluntary agreement' at every stage."
The mandate for high school training in the meaning of consensual sex should also call close attention to the implementation of the California and New York at the affected colleges and universities.
I taught for thirty-five years at a public university — Miami University in Oxford, Ohio — and performed much of the "Service" portion of my job as a faculty member of our Student Affairs Council, and spent a fair amount of that time helping to write rules for our Student Handbook and, now and then, check up on how the rules were explained and applied by our Division of Student Affairs.
The Student Affairs Council of Miami University ("SAC") wrote rules and sent them on to the Trustees for approval and that was usually that. The membership of SAC was faculty, students, and staff. Staff members served as part of their jobs as staff members; the students were mostly student body officers serving ex officio; and, again, we faculty chalked up our service to Service, which was 20% of my contractual obligation as a professor.
Only on rare occasions did the Trustees need legal opinion, and for many years that could be handled by someone on the staff of the Ohio Attorney General, or by a contracted local lawyer.
That will not be the case for Affirmative Consent, where University regulations will be difficult to write and more difficult still will be preparing brochures and presentations advising students on "legally safe sex."
Generally, the Affirmative Consent discussion has assumed vanilla heterosexual sex between two unmarried young people "hooking up." But even at Miami University at Oxford, with a student body dominated by 18-22-year conservative, middle-class, Catholic/Christian "kids" — even Miami was more diverse than that. Married students can commit and suffer rape and sexual assault; guidance for legally safe sex would have to set up guidelines that would include married couples, and it will be tricky for State institutions to involve themselves with guiding the sex lives of married people.
It will be both difficult and awkward to advise on legally safe sex of non-vanilla varieties. On the one hand, I'm not sure I'd like to write rules or put together a brochure or website entry for sexual encounters involving handcuffs and a ball gag, especially if the major objective of the game is domination and silent submission. On the other hand, it is naïve to think that no students at no time are going to engage in 20-shades-of-off-white S&M, one of the more popular perversions.
Alternatively, advising students that sexuality of non-vanilla varieties is legally risky is a possible course, but it is problematic to have State involvement in the details of people's sexuality and to return indirectly to concepts of (potentially) Sexcrime.
Even with the usually-envisioned young, unmarried, heterosexual couples there are complexities. When does requesting affirmative, conscious, and voluntary agreement at every step become sexual harassment? When advising students on legally safe sex, what should campus authorities advise on when to start asking explicit questions? In one form of ideal world, young people would go up to someone they find attractive and say, "Hi. I find you sexually attractive. Would you like to talk a bit and see if we'd both like to go over to my place or yours for sex acts we'd both enjoy?" In one form of ideal world such a conversation would be unremarkable, but that is not a world we live in.
There are also deeply-ingrained if generally unconscious theological and moral considerations influencing much sexual behavior.
Even vanilla sex among unmarried people is fornication, and Miami University at Oxford was far from unique in having a lot of young students brought up on "Just Say No" to fornication.
"Good Kids Don't": They especially don't consciously choose to sin. To paraphrase a Miami philosophy major channeling George Carlin, what good kids do do is "Get drunk, get stupid, get laid, get penitent, get absolved — and repeat."
This student was highly sophisticated, but the theology she argued is straightforward, especially for a traditional Catholic. To get drunk and get animalistic is to engage in bestial sins abhorrent to puritanical cults and subcultures; but wordless, drunken, animalistic rutting is less sinful than getting demonic by warping one's divine Reason and Will with "affirmative, conscious, and voluntary agreement to engage in sexual activity," i.e., in traditional Christian terms, for the unmarried, to engage in the mortal. Falling into sin is one thing; consciously choosing sin and articulating your choice is literally willful disobedience and an enactment of Satanic Pride.
Brochures and presentations on Affirmative Consent would have to advise unmarried students to engage in conscious, mortal sin or give up on sex. Such advice can be framed, but it will take very clever lawyers and student affairs officials to avoid either entering a theological thicket or acting in bad faith and denying that theological issues exist. It could also require a willful blindness to the function of drugs in human sexuality, alcohol especially, since at least the time of Gilgamesh for beer (ca. 2100 BCE) and Euripides's The Bacchae for wine (405 BCE).
Indeed, "Yes means yes; no means no; and maybe means maybe." Going beyond that to "'affirmative, conscious and voluntary agreement' at every stage" raises difficulties that should be watched with care.