Updated: Aug 23, 2022
California has enacted SB695, a law which will now required high schools in California to teach students about the concept of “affirmative consent.” According to the law, affirmative consent is defined as “as affirmative, conscious, and voluntary agreement to engage in sexual activity.”
This bill was created and passed as an attempt to address the rape epidemic on college campuses. The Bureau of Justice Statistics has reported that 20 percent of college-age women enrolled in post-secondary education report being sexually assaulted. I know there are a few vile articles, included a recent one in Time magazine trying to dispute that college women get raped at any significant rate. The BJS report only included women who reported being sexually assaulted. We know that rape is under-reported, so the numbers are probably higher. However, even if it was one in every hundred college students reporting rape, that is still too many people being assaulted.
The Good Stuff in the Law
There are a few good things in SB695. It requires that high school students learn about types of sexual harassment and assault, that they are taught the concept of “affirmative consent,” and that they are informed of resources for people who have been sexually assaulted. It makes vague reference to students understanding “boundaries” in relationships.
I am good with that language. Students need to understand the concept of voluntary consent and that some things are not okay – sexual assault, sexual harassment, coercion. These concepts are largely missing from current education around sex. Most sex education to this point has focused on the physical technicalities of sex and pregnancy prevention. We need to go beyond that and SB695 is a baby step in that direction.
What Affirmative Consent Fails To Do
Affirmative consent, both in high school education and college policies, fail to recognize the complexities of sexual interactions and fail to provide an option for people who need to protect themselves.
Affirmative consent is overly simple. “Yes Means Yes” is a reframing of the failed “No Means No” campaigns and techniques. Both fail to recognize how boundaries change and how people communicate about sex. Neither provide an option for someone to change their mind. Neither recognize that a “No” or “Yes” to sex does not cover the myriad of activities included in sex. Neither campaign provide an option for someone effectively stopping a sexual encounter
“Yes Means Yes” focuses on someone giving voluntary consent to sexual interactions. So let’s look at what this might look like on a college campus (since college aged people is the focus of this law).
Two people meet at a college party. They chat, flirt, and laugh. They have a beer or two. They are both sexually attracted to one another. Then comes the point where they want to kiss.
Affirmative consent, at least the way it has been written into college campus policies in California, require both parties to establish mutual, voluntary consent before the first kiss. Go back to your early 20s. How many times did you look at someone you wanted to kiss and stop to say, “May I kiss you?” It happens. Occasionally. This is not a widely spread practice. It is also horribly awkward.
Let’s assume the couple establishes mutual consent to kiss. Next, they want to move on to making out. The way affirmative consent laws are written in California, the couple has to then establish verbally that going on to something beyond kissing is okay. So, our couple is kissing. Then one of them stops and says, “Is it okay if I take off your top and play with your breasts?” This is less likely to happen then asking if it is okay to kiss. This same exchange is then supposed to happen before our couple moves on to having sex.
The reality of sexual interactions is that negotiations about each sex act are not negotiated throughout an encounter. Generally, a couple with start kissing and making out. One partner may move on to other touching and ask through panting breath, “Is this okay?” It is not uncommon to get to the point where the couple wants to have sex and one partner will either indicate verbally they want to have sex or that someone will say, “So, we are going to do this?” When met with some form of affirmative reply, verbal or a head nod or something else, the couple proceeds.
“Yes Means Yes” also assumes that the sexual interaction is linear. Once sex has been agreed to but before it begins, neither party will change their mind. This is not reality in a lot of situations.
Example: A couple agrees to have sex. They start making out. It comes to the point where a condom is needed. One partner hands the other partner a condom. The second partner tosses the condom aside and says, “There is no need for that,” then tries to proceed with having sex. “Yes Means Yes” does not recognize that this scenario may mean one partner goes from a “Yes” to “No” and could go back to “Yes” if the second partner agrees to use a condom.
How Do We Address Rape?
If “Yes Means Yes” and “No Means No” don’t work to effectively address rape, what can we do?
We need a National Safe Word. In the kink community, safe words are used to indicate that some activity is not okay with someone. Commonly, we use “red.” Red is a simple, single syllable word culturally associated with “stop.” Kinksters are taught that when someone says “Red” they need to immediately stop what is happening and address the needs the partner has. Red can end all action for the time being or the issue may be addressed then play can continue.
Red can be used when some action is not okay because it is physically or emotionally hurtful. Red can also be used when something is occurring that needs to be immediately addressed before anything else can happen. I have used it because of spiders. I HATE spiders. If I see one on the wall or the bed, I will call “Red” and everything stops until the evil creature has been killed and flushed down the toilet. Then things can proceed.
Unlike “Yes” or “No” “red” is generally not used in most conversations. Since we are talking about college students, at a party, the attendees are generally not going to be using the word “Red” much. “Yes, I would like a beer,” “No, the midterm went really badly,” “Yes, I think she is a gossip,” and on and on. If someone shouts “Yes” or “No” it gets little attention. Someone shouting “Red” will be heard.
Safe Words and K12
Creating a National Safe Word will also allow us to start educating students at a much younger age about body safety without talking about sex. When my godson started kindergarten in California, he came home the first day with the school’s sexual harassment policy and instructions for his parents to explain sexual harassment to him. I think this is stupid.
However, if we started a National Safe Word, we could talk to kindergartners about the fact that they have a right to keep their bodies safe as do their classmates. We could tell them that some girls don’t like their braids pulled and it is not okay to hug people without permission.
As students age, we can continue the discussion that their bodies belong to them. That everyone is not the same. We can talk about how some people like hugs and other people don’t. We can talk about how you need to check with someone before you kiss or touch them. We can empower our students with the idea that if something is uncomfortable for them, they have a right to say “No” and not be subject to unwanted touching. We can give them a word (“Red”) for when they are really in trouble and need to tell someone it is not okay without getting confrontational.
How Do We Get National Safe Word
The “Yes Means Yes” law opens the door for a National Safe Word. We need to start talking about how we empower students to protect themselves. The curriculum for a safe word is simple and easily made age-appropriate. Unlike “Yes Means Yes” a safe word allows us to talk to young children without introducing advanced sexual concepts at an early age. We let students know they have to protect their bodies and respect other people’s bodies.
A PSA campaign would also be immensely useful.
The biggest issues I see with a safe word campaign are two-fold. First, the idea originates with the kink community. Many people are fearful and hold a lot of wrong ideas about kinksters. They picture some massive, muscle-bound man in leather pants beating some woman wearing a gimp mask and shouting at her. This is only part of kink. We would have to address people’s fears about kink in the curriculum. I have no need to teach high school students how to throw a single-tail whip or tell them the benefits of leather cuffs over metal handcuffs. I just want people to protect themselves.
The second issue is deeper. A safe word acknowledges that everyone has the right to protect their body. This is not a universally held belief in America. There are contingents that talk about “legitimate rape” and we still send girls home for wearing shorts because “boys can’t concentrate” if they see skin above a girl’s knee.
Regardless of the difficulties, if we really want to address rape, we need to get more sophisticated than “Yes Means Yes.” A National Safe Word does that.
For more information on creating a National Safe Word, see my page here.