For some years now, the legal definition of consent has been in question and in flux. Simply speaking, consent is mutual agreement between two people; the implication is that a sexual encounter can’t involve assault if two (or more) people all enter into it willingly.
But how is the willingness gauged? Is it by affirmation or by lack of objection? Can a person who lies passively in bed having sexual relations with another person be said to “consent”? What, moreover, are the boundaries of consent? Can a person change his mind in the middle of a sexual episode and, instead of going along, say, “I want to stop now”? If the other person doesn’t stop, is she open to charges of rape?
The state of California, often the trend-setter in such matters, has recently adopted a law defining consent as “affirmative consent”—that is, as an active “yes means yes” agreement versus the “no means no” approach to denying or withdrawing consent. California colleges must adhere to this definition or lose state funding. (Whether the state is solvent enough to provide funding is another matter.) Many individual colleges have beat California to the punch, including Amherst, Yale, the University of North Carolina at Asheville, and the University of Wisconsin at Madison. Policies at these schools acknowledge that a “yes” can be stated in ways other than verbal—as, for example, someone removing her clothes to indicate consent.
Although these schools’ admittedly legalistic policies draw mockery from cynics and and objections from romantics, the schools are attempting to curb sexual violence, a problem that’s yet to find a clear solution. However clumsily, these schools are at least making the attempt.
Some of these schools and others also include a clause in their policies that provides for someone’s change of heart in the midst of a sexual encounter. The College of William and Mary’s definition of “effective consent” includes the proviso that consent “is never final or irrevocable.” This angle on consent has entered into cases of alleged rape outside of academe, in the courts. The question of whether NBA superstar Kobe Bryant could be found guilty of rape in 2003 became entangled with the possibility that the woman accusing him of rape in Colorado had at first consented to intimate relations, then changed her mind in the midst of sexual intercourse.
Writing about another 2003 rape case—this one in California—Matthew Lyon analyzes the growing trend in the courts to attend to the matter of ongoing, versus withdrawn, consent. Noting that the shift away from the sufficiency of initial consent has caused a great deal of heartburn throughout the U. S. legal system, he writes, “A natural step in [the] evolution [towards a model in which all nonconsensual sexual intercourse will be outlawed] is a statute in all fifty states that explicitly prohibits forced, nonconsensual intercourse at any time during the sexual act, rather than just at penetration.” Obviously, defining consent has become trickier than simply assuming we know it when we see it.