Rape is inexcusable and deserves to be discussed seriously, but the current nationwide push for so-called “yes means yes” laws is likely to cause more harm than good.
In brief, a “yes means yes” law puts into state statute a legally binding requirement that all parties involved in a sexual encounter demonstrate an “unambiguous, affirmative and conscious decision” to engage in voluntary sexual relations, to quote California’s legislation, which passed last year.
In practice, this means getting verbal consent — an explicit “yes” — at every progressive step in a sexual act. While this would appear to be a reasonable approach, it is both unreasonable and unworkable.
First, virtually all relationship counselors recognize the importance healthy sexual relations play in building long-term trust, empathy and identity within relationships. This intimacy is built using a range of verbal, nonverbal and behavioral actions, often ambiguous by legal definition.
At the core of the “yes means yes” legislation, however, is a presumption that sex is unwanted and destructive. The law thus codifies legalistic rules that work against creating these bonds.
Second, such legislation completely misses the real problem surrounding sexual assault, particularly date rape and campus assault. Most rapes and attempted rapes are not committed by perpetrators who would be stopped because the person they’re with has not verbalized a “yes.”