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Yes means yes, lessons from affirmed consent

Freshmen (first-year university students) across the US are in the middle of what is known as “the red zone” — a period of time in which an especially high number of incidences of sexual violence are reported on college campuses. It is during this period that US universities typically engage in numerous awareness campaigns that attempt to address the pervasiveness of this kind of violence.

A little over a year ago, a number of American states began implementing Senate Bill No. 967, a law necessitating that all investigations into cases of sexual violence on university campuses adopt standards of affirmative consent. In short, affirmative consent requires that students are absolutely explicit in verbally consenting to any sexual activity.

With continuous societal disregard toward survivors of sexual violence, legislation around affirmative consent has arrived at a crucial, albeit delayed, moment. The law seems to widen the definition of sexual violence to include particular cases that are often ignored in both legal proceedings and public discourse. Such cases may include rape between long-term romantic partners, or consenting to some sexual acts but not others. The simple “yes means yes” underpinning of SB No.967 serves as an important reminder that sexual violence takes on a number of forms, and is in fact not inappropriate behaviour. It is violent behaviour.

Although no red zone has been outlined, sexual violence within South African universities is rife. The anonymous entries posted to one especially revealing blog highlights that the pervasiveness of such violence on campuses is tolerated at both institutional and social levels. Indeed, universities may serve as a microcosm for broader South African society, where the acceptance of sexual violence has been institutionalised. Numerous public discourses and understandings work to render secondary survivors of sexual violence by normalising or disbelieving their experience of this kind of violence.

In the year since its implementation, the affirmed consent law has done little to drastically diminish instances of sexual violence at American universities. One may therefore argue that there is little reason to strive for such ineffective legislation in South Africa. But this kind of argument diminishes the important societal contributions inherent within affirmative consent.

Laws like SB No.967 act to raise awareness as well as make clear that which constitutes sexual violence; an incredibly simple definition which is constantly renegotiated and reconstructed within patriarchal societies. Although this legislation has yet to significantly reduce instances of sexual violence, it arms us in deconstructing the culture — or what associate professor Pumla Gqola calls the “language” — of rape, in which these instances of violence are embedded.

SB No.967 presses those on campus and beyond to actively disrupt attempts to define sexual consent in any way other than “yes means yes”. Although the notion of affirmed consent will not cease perpetuations of rape culture, its legislation serves as an important and an explicit reminder that all discourse which acts to excuse, justify or ignore sexual violence cannot be tolerated.

Author

  • Nick Malherbe is a researcher at the Institute for Social and Health Sciences at the University of South Africa and the South African Medical Research Council-Unisa Violence, Injury and Peace Research Unit. He writes in his personal capacity.

5 Comments

  1. MrK001 MrK001 21 October 2015

    Before anyone thinks they have learned any lessons and before anyone wants to turn their opinion/prejudice into a law, they should check the statistics first. Are they sound? Do they say what the ‘researchers’ claim they say?

    This is the law in question, and you should read it to understand the implications – do you need cameras, fill out forms in triplicate, etc, to reach ‘informed consent’?

    https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201320140SB967

    ” (1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent. ”

    This is all about the sexual/moral panic ginned up by the Diepsloot crowd. Bad cases and moral panics make for bad law.

  2. Rory Short Rory Short 21 October 2015

    At a social level I think we are trying to bolt the stable after the horse has bolted. Children are not being raised to respect others because they don’t have the experience of others respecting them. If they were they would not need laws that try to make up for this defect in child rearing. We do need such laws of course because there will always be some people who fall through the cracks in the social fabric but in South Africa the social fabric is in shreds and these laws will not fix that, they are not intended to.

  3. HughRobinson HughRobinson 27 October 2015

    Children are not being nurtured full stop. The fall of morality and respect is I believe directly proportional to the time a mother spends rearing her children and instilling social norms. In the UK for instance too many kids of 4 are not potty trained, another large section do not know a knife and fork.
    I believe that despite what the feminist and sociologists say if a child is not taught the intricacies of life such as affection how do they pass that onto the next generation.

  4. Radioedit Radioedit 27 October 2015

    If I walk up to my GF of several years, put my arms around her, kiss her on the cheek, and affectionately swat her on the butt as I walk away, have I sexually assaulted her? I didn’t ask for verbal permission for any of these things, but what’s the alternative? Should I have stopped and verbally asked for express permission for each individual touch? Should I do that every single time? Because I’m pretty sure that would end up driving her insane and destroying our relationship.

    Consent can be a tricky concept, and there’s a great deal of debate over what is/is not consent. Literally speaking, all consent means is to voluntarily acquiesce to another person’s desires. Consent doesn’t require that you be “into” sexual activity. It just requires that you voluntarily allow it to occur, with the freedom and capacity to make that choice. Obviously this can’t happen when someone is passed out drunk or threatened with violence, but choosing to allow contact without saying “no” (despite being ABLE to say no), clearly indicates consent, per the literal definition of the word.

  5. BrS BrS 15 March 2016

    Affirmative consent is a stupid idea proposed by people who are either ignorant or intentionally dishonest.

    You also have to keep in mind that the study referenced involved self-selection. 98 women chose not to participate. They also include the totally vague unwanted sexual touching. Anyone who follows this topic should know by now that women are being encouraged to view a number of innocent behaviours as an assault. They’re also encouraged to view regretting sex as being raped.

    Furthermore that blog does not prove sexual violence is pervasive.

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