Cohen Hall, Room 402
Abstract: The way in which consent to sexual interactions is understood in the United States is undergoing a transformation. Many universities, sometimes at the behest of lawmakers, are moving to adopt ‘affirmative consent’ policies. These policies define affirmative consent in terms of affirmative behavior that goes beyond mere silence or lack of resistance. Although the affirmative consent movement is associated with the slogan ‘yes means yes’, affirmative consent policies tend not to require verbal agreement. Affirmative behavior may consist in words, but may also consist in ‘clear’ or ‘unambiguous’ actions. In this paper, I explain why silence and lack of resistance ought not be taken as giving consent in the sexual context. In this respect, affirmative consent policies are a move in the right direction. I argue, however, that the content of these policies has not been properly understood. In particular, the circumstances in which nonverbal behavior may clearly communicate consent are more limited than might be apparent. And even though these circumstances can be abstractly identified, it is difficult to give people adequate guidance about when some of them obtain. Moreover, I argue that no matter how the allowance for nonverbal behavior is construed, affirmative consent policies unnecessarily prohibit interactions that people may have reason to engage in. I propose an alternative policy that remedies the problems with the affirmative consent policies currently being implemented. And I argue that this alternative policy ought to be implemented in the law, not just on college campuses.