When California passed a “yes means yes” law last fall requiring that all university students receive ongoing, affirmative consent throughout every stage of every sexual encounter, the measure was widely debated on editorial pages across the country. In a possible sign that such regulations are moving from cutting edge to standard practice, New York Governor Andrew Cuomo signed a virtually identical bill into law on Tuesday with very little fanfare, as Reuters reports.
Proponents of affirmative consent are surely well-intentioned, but the standard is unworkable. Taken literally, it would proscribe an absurd range of activities. Judith Shulevitz quoted an illustrative example from an American Law Institute memo in her latest New York Times op-ed: “Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch.” Under a literal reading of the affirmative consent standard, “Person A” is guilty of sexual misconduct, because holding hands could be construed as a sexual act, and no explicit consent for the act was granted.
As Megan McCardle has pointed out, the fact that it is hard to imagine anyone actually getting in trouble for the situation described above is no comfort at all. The regulation is so broad that it encompasses a wide range of ordinary activities, which gives the authorities tremendous power to pick and chose whom to punish among the many, many people who have technically run afoul of ‘yes means yes.’ The problem isn’t that holding hands without asking permission will be banned—it’s that students will continue to hold hands without asking permission, and university administrators will have the authority to punish whichever students they don’t like.
When affirmative consent was merely being promulgated by campus administrators, it might have been reasonable to dismiss it as the typical politically correct silliness that we have come to expect from the academy. Now that the governments of two of America’s most populous states have thrown their weight behind these sex regulations (at least for college students) it is time to start taking them seriously. Administrators are getting more discretion to punish students for infractions just as those students are getting more libertine in their sex lives. This isn’t likely to end well.