Monday, October 27, 2014

Yes means Yes: The Case for an Affirmative Consent Standard in Sexual Offences

Rape is non-consensual sexual intercourse (at least, it is everywhere that doesn’t still cling to a “force” requirement). In the typical rape case, consent is relevant in two respects. First, it is relevant when proving that the actus reus (“guilty act”) took place: the complainant/victim’s lack of consent is deemed to be a crucial element of the offence. Second, it is relevant when proving mens rea (“guilty mind”): the defendant's lack of a reasonable belief in consent being critical to legal blameworthiness.

But how do we know when consent is present or absent? How do we determine if the defendant lacked a reasonable belief? For a long time, supporters of rape law reform rallied around the “no means no” standard. According to this, if a complainant said “no” to a sexual act (or otherwise signalled non-consent), then this should be taken at face value. It should be taken to mean that they did not consent to the act and that a defendant could not make the case for a reasonable belief in consent.

At first glance this seems like an attractive standard, but problems emerge in practice. Consequently, many now advocate for a “yes means yes” or affirmative standard of consent. In this post, I want to look at the argument in favour of such a standard. In doing so, I draw upon Nicholas Little’s article “From no means no to only yes means yes: The rational results of an affirmative consent standard in rape law”, which appeared in the Vanderbilt Law Review back in 2005, and was recently recommended over on the Feminist Philosophers blog. Like many US law review articles, I think the word that best describes Little’s piece is “unfocussed” (British spelling). It seems to ramble over many areas of current and past legal policy and practice, sometimes losing sight of the central issue. Nevertheless, I think it does contain the kernel of a good argument in favour of an affirmative standard. My goal in this post is to extract that kernel.

I do so in three steps. First, I discuss the epistemic problem at the core of sexual interactions. Second, I explain how the “yes means yes” standard would work. And third, I rebut a range of objections to such a standard. With the exception of the first of these steps, everything I say is based heavily on Little’s original piece.

This post is somewhat timely. Although US universities have adopted affirmative consent standards for their students in the past, one has just recently been adopted across Californian colleges and universities. Nevertheless, I am not overly concerned with those reforms in this piece. The discussion is focussed more on the criminal law and on the general philosophical and ethical issues.

1. Sexual Consent and the Common Knowledge Problem
At its core, sexual consent is an attitudinal thing. It is a willingness and desire on the part of the participants to engage in some sexual act. The difficulty with this attitudinal account is that it makes consent a subjective phenomenon. Something that resides in the minds of individual actors. This makes it vulnerable to a classic philosophical problem: how can we really know what (if anything) another person is thinking?

The simple answer, of course, is to ask them. Although I do not have direct access to your thoughts, I do have indirect access to them. I can ask you what you are thinking and you can use “signals” — objectively meaningful codes and symbols — to reveal your thoughts to me. Sometimes these signals are verbal — “I am really hungry right now” — and sometimes they are non-verbal — e.g. pointing to some food and rubbing your belly. Signals of this sort can only work if both parties know what they mean. Thus, in order for rubbing your belly to successfully signal hunger to me, I need to know what it means and you need to know that I know what it means and so on ad infinitum (i.e. the meaning of the signal needs to be common or at least shared knowledge between the two of us).

The need for common knowledge presents a difficulty. Many signals are arbitrary in nature. The three letters “D-O-G” mean dog in the English language, but there is nothing special about those three letters. Different letters signal the same thing in different languages. Indeed it is even worse than that. The same signals can mean different things in different contexts; and “private” languages — wherein a signal takes on a particular meaning known only to a narrow group — can emerge in some cases. We navigate through these difficulties on a daily basis, often by asking for clarifications when a signal’s meaning is opaque. But sometimes we are reluctant to do this because we are afraid to look stupid or admit to uncertainty.

This creates a particular problem in the sexual domain. Given that sexual interactions can be a source of both great joy and great suffering, their participants need to tread carefully. They need to ensure that each person consents to each part of the interaction. To ensure this, they need to know what the other party is thinking: what their attitudes toward the interaction are. This means that they need to have signals that clearly and unambiguously indicate a willingness to proceed.

One might think that a “no means no” standard would help in this regard. After all, the word “no” (or a non-verbal equivalent such a physical resistance) certainly looks like a clear and unambiguous signal of non-consent. But for a variety of reasons this is not the case. There are many myths surrounding sexual behaviour. Women are perceived as “slutty” or “promiscuous” if they are too forthcoming in their sexual desires; men are sometimes led to believe that a “no” really means a “yes” (or, at least, a “try again”); and people often over-interpret the meaning of non-verbal signals (clothing, friendliness etc.).

These myths can have a direct impact on rape trials. Juries are often willing to acquit a defendant on the basis that he (and rape is gendered crime in most jurisdictions) reasonably inferred consent from some non-verbal signal, or because he reasonably believed that “no” meant “yes”. A good example of this can be seen in Finch and Munro’s 2006 mock-jury study of the English law. This study found that several jurors were willing to acquit on the basis that a friendly demeanour and inviting someone back to one’s bedroom (etc.) could ground a reasonable belief in consent.

And there is another problem with the “no means no” standard: it places the onus on the victim (typically a woman) to provide the signals. It is as if the default position is one of consent, which can only be rebutted by a clear and unambiguous signal to the contrary. This is problematic because the victim is often socially or physically “weaker” than the defendant and so fears the consequences of signalling non-consent. They may also buy into some of the prevailing myths of sexuality themselves, believing that they should remain silent in order to maintain social decorum.

2. Moving toward a “yes means yes” standard
Can do better? Can use the law to improve our socio-sexual morality? Although the law doesn’t hold sway over all facets of human behaviour, and oftentimes follows it instead of shaping it, it may be possible for the law to have some causal influence on our sexual behaviour. By having a legal standard that combats the existing myths, and elevates consent to its rightful place, we may be able to correct for some of the flaws in the current system.

One way of doing this would be to adopt an affirmative (“yes means yes”) standard of consent. In his article, Little describes the proposal like this:

An affirmative consent standard requires that, for sex to be considered consensual, it must have been consented to by the woman in advance. In short, if the instigator of a sexual interaction wishes to do anything, he or she must inquire whether his or her partner wishes that to be done, and that partner must receive freely given consent to continue. 
(Little, 2005 p. 1345)

I think this effectively captures the gist of the idea, but it has at least one problem. As Little himself notes later on, one of the virtues of the “yes means yes” proposal is that it can help us to take a more egalitarian view of sexual interactions. Instead of there being a (male) “instigator” and a (female) recipient, there are two (or maybe more!) co-conspirators, both taking an equal role in planning and shaping the future direction of their sexual interaction. Thus, I would prefer to banish talk of “instigators” from the proposal.

Affirmative Standard of Consent: In order for any particular sexual interaction to be deemed morally (or legally) permissible, the participants to that activity must have freely, positively and unambiguously signalled their willingness to proceed with the interaction; the mere absence of objection will not suffice.

Admittedly, this may be too idealistic. In a legal trial the focus will still have to be on one of the participants (the defendant) and what he reasonably believed about consent to the interaction. So there will always be some lingering asymmetry in how we view the scenario. Nevertheless, I think a move towards the “co-conspirator” model would be beneficial and the affirmative consent standard may at least nudge us in the right direction.

The standard would seem to have at least two further benefits. First, it would directly oppose some of the traditional (and I would submit harmful) myths about sexual behaviour: it would undermine the credibility of the “no sometimes means yes” viewpoint, and it would lure us out of the dangerous belief that people (particularly women) should not (and do not) give voice to their true sexual desires. Second, it would shift some (but not all) of the burden of proof. Instead of the onus being on the victim/complainant to signal a desire to stop; the onus would be on the defendant to seek a signal to begin and to continue.

That said, the proposal is certainly not a panacea. This is something Little is keen to emphasise in his article. Many rape trials adopt a “he-said-she-said” format. The sexual intercourse is not denied, but the parties have very different interpretations or recollections of what happened. An affirmative consent standard can do nothing to avoid the epistemic problems associated with this trial format: it will still come down to a question of whose account is more credible. All that the affirmative standard can do is eliminate certain lines of argument from the defendant’s arsenal. He can longer argue things like “I thought she was consenting because she said nothing” or “I thought she was consenting because she was so friendly to me earlier in the evening”.

3. Objections and Replies
Some people object to the introduction of an affirmative standard. It is important to address their objections. An initial one — not discussed in Little’s article — might be that the argument is unnecessary because an affirmative consent standard has already been incorporated into the law. This clearly isn’t true in every jurisdiction but I’m thinking here of the English legal position, as set down in the Sexual Offences Act 2003. In that act, a reasonable belief in consent is characterised in the following manner:

Section 1(2): Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A [the Defendant] has taken to ascertain whether B [the Complainant] consents.

One might think that the phrase “including any steps A has taken to ascertain whether B consents” is a nod in the direction of affirmative consent, and in a way it is. It does suggest that a defendant has to seek affirmative signals of consent. But it is nothing more than a nod. It doesn’t oblige the defendant to seek such signals, and it includes the modifying phrase “having regard to all the circumstances”. This implies (and this implication seems to be borne out in practice) that there are circumstances in which A need not take any such steps. A proper affirmative consent standard would raise the bar higher than this.

Leaving that to the side, what are the other objections one might have to an affirmative consent standard? There are five, and each is addressed at some length in Little’s article (note he doesn’t number or order them in quite the same way).

First, one could argue that adopting an affirmative consent standard represents a dangerous shift in criminal legal policy. The notion that the prosecution must prove their case against the defendant beyond all reasonable doubt is a longstanding one. This is for good reason: the penalties associated with a criminal offence are high and we need to guard against the risk of false imprisonment. By shifting some of the burden of proof onto a defendant, an affirmative consent standard may increase that risk.

This may be true, but it there are some come counterbalancing considerations. For starters, the burden will never be shifted in full: there are other elements to a rape or sexual assault charge that will need to proved by the prosecution. The risk of false imprisonment also needs to be balanced against the current risk of false exonerations. Furthermore, there are already areas of the criminal law in which part of the burden of proof is shifted onto the defendant. Indeed, in the English law on consent to sexual activities, there are certain contexts in which consent is conclusively or evidentially presumed to be absent (not to mention the existence of statutory rape laws which eliminate a consent requirement). A full-blooded affirmative consent standard goes further than these exceptions, to be sure, but still represents a point along a continuum, not a radical break from existing practice. In any event, the standard of proof required from the defendant could be relatively low (e.g. he may need to prove it on balance of probabilities or something even lower). Picking the right standard could help to balance the risks of false incarceration and false exoneration.

Second, and related to the first objection, there is the worry that an affirmative consent standard may lead to a rise in false accusations. You can imagine the argument: with the burden shifted away from them, it would become much easier for a complainant to bring a false accusation to bear on an innocent man. False accusations are, no doubt, real and have historically had a racial component to them (in the US at least), but the risks are probably exaggerated. As Little notes:

[F]alse accusations of rape are no more prevalent than false accusations of other types of major crime. Indeed, when such false accusations do occur, they tend to be made by young women, and are dealt with rapidly and efficiently by the police. 
(Little, 2005, 1357 - footnotes omitted)

Little goes on to provide some further context for these claims, as well as responses to criticisms of them. I'm not well-positioned to evaluate this factual issue. In any case, the risk of a false accusation would seem to be greatly diminished if the participants to a sexual interaction have an open and frank “conversation” (verbal or non-verbal) about what they desire and what they are willing to do. It is those types of conversation that the affirmative consent standard tried to encourage, and it is the absence of such conversations that increases the risk of committing a rape. Finally, the risk of false accusation must be balanced against the risk of under-reporting rape. As Little and others have noted in the past, the risk of under-reporting seems greater at present.

Third, there is the concern that seeking affirmative consent in a sexual encounter is somehow awkward and inappropriate, or that it “kills the mood”. There are several things that can be said in response to this. In the first place, one can note that what is deemed “awkward” or “inappropriate” is culturally contingent: a legal standard demanding affirmative consent may make it much less awkward and inappropriate. In addition to this, there is the fact that there are forms of human sexuality that already adopt an affirmative consent standard. Little gives the example of S&M, in which the norm (admittedly not always respected) is to set pre-determined limits on what the participants are willing to do, and to use safe words to facilitate the withdrawal of consent at any time. This doesn't “kill the mood”, and the rationale behind it is interesting. People seem to think that the risk of physical harm from S&M warrants extra caution, but then why shouldn’t the harms of non-consensual sex always warrant such caution? Another point is that affirmative consent standards are not that unusual in other areas of the law. For example, if I want to borrow your car I typically need to seek your affirmative consent, otherwise I may be guilty of theft (actually: the law on theft and consent is complicated); or if I want to perform surgery on you I need to seek your affirmative consent. Why should we treat sexuality differently when it is so important to many of our lives? Finally, it is likely that having an open and frank conversation will improve the sexual experience, rather than detract from it. By being open, the participants can better ensure that the interaction is to their mutual advantage. Any awkwardness will dissipate in time.

A fourth objection to the affirmative consent standard would highlight its potential harms to women. A defender of the existing model could argue that a “no means no” standard allows women to have the best of both worlds. As noted above, prevailing cultural beliefs tend to punish women who are too forthcoming or open in expressing their sexual desires. A “no means no” standard might be thought to allow them to maintain some level of decorum whilst also getting what they want. I think this is dubious, at best. The problems with the “no means no” standard and the potential harms of non-consensual sex, would seem to greatly outweigh this suggested benefit. Furthermore, the negative stereotyping of women should be combatted in other ways. In this respect, I think the Irish satirical news website Waterford Whispers News is to be commended for their article “Woman On Walk Of Shame Not Really Feeling All That Ashamed Of Anything” (note: it is satire).

There is one final objection to mention. This comes from the radical feminist school of thought. I’ll let Little explain it:

[Radical feminists] argue that society is set up such that women are constantly oppressed and subordinated and, therefore, their consent cannot be a valid expression of willingness to take part in sexual activity. Indeed, a single mother who has no source of income may "consent" to provide sexual services to a man in exchange for shelter and food for herself and her child. Such a relationship, while not consensual in the most meaningful sense, would not be considered rape under any proposed affirmative consent standards. 
(Little, 2005, p 1361)

He goes on to discuss examples of this view from the work of MacKinnon. There is a fair point to be made here. An affirmative consent standard is not going to solve all the problems of sexual inequality. Nor is it even going to solve all the problems associated with the concept of “consent”. For example, it provides no guidance in relation to deception, coercion, mistake, incapacity, and intoxication, all of which have an impact on sexual morality. But we shouldn’t expect it to do everything. It makes a step in the right direction. It tries to change social attitudes toward sexual interactions, tries to equalise the relationship between the participants, and tries to encourage a more progressive and mature approach to sexuality. It is not going to eliminate rape and sexual assault.

4. Summary and Conclusion
I haven’t presented a formal argument for the affirmative consent standard in this post. Rather, using Little’s article, I have tried to identify some problems with existing approaches and some of the potential benefits of switching to the affirmative standard. To conclude it might be worth pulling together the various strands of argumentation into a more user-friendly summary.

We can start with the basic case for an affirmative consent standard (note: this is not intended to be a logically valid argument; rather it is an informal summary of the reasoning):

  • (1) The harms of non-consensual sex are great; we should do what we can to minimise those harms.

  • (2) A “no means no” standard of consent does not minimise those harms because in typical rape case it places the onus on the woman to signal non-consent, and is often overwhelmed by prevailing cultural myths about sexual behaviour (e.g. the meaning on non-verbal signals, the belief that “no” means “yes”)

  • (3) A “yes means yes” standard would do more to minimise those harms because it would (a) try to equalise the relationship between the sexual partners (both ought to be willing co-conspirators); (b) in the typical rape case, it would put the onus on the man to seek some affirmative signal of consent; and c) it would counteract the prevailing cultural myths by blocking any reliance on them as a defence.

  • (4) Therefore, we should introduce an affirmative consent standard.

Then we have the objections and replies:

Objection 1: An affirmative consent standard represents a dangerous shift away from the presumption of innocence by placing the burden of proof on the defendant.
Replies: The full burden need not be shifted; the risk associated with this should be weighed against the risk of false exonerations under the current system; there are already aspects of the law on sexual assault that shift some of the burden onto the defendant; and the standard of proof imposed on the defendant can be set at an appropriate level.

Objection 2: An affirmative consent standard could increase the number of false accusations.
Replies: The number of false accusations is probably low and those we know about are often dealt with quickly and efficiently by the police; the risk of false accusation would also be mitigated by having an open and frank conversation with one’s prospective sexual partner; and finally the risk of false accusations needs to be balanced against the risk of under-reporting.

Objection 3: Seeking affirmative consent would be awkward, inappropriate or mood-killing.
Replies: The law can change what is deemed awkward and inappropriate; affirmative consent standards are already the norm in some areas of human sexuality (e.g. S&M) and in other areas of the law (e.g. consent to having one’s property borrowed, consent to medical treatment); and having an open and frank conversation with one’s prospective sexual partner is likely to enhance, rather than detract from, the sexual experience.

Objection 4: A “no means no” standard is beneficial to women as it allows them to maintain the socially desired form of “decorum” whilst at the same time engaging in the kinds of sexual activities they desire - an affirmative standard would disrupt this and play into the hands of stigmatisers. 
Replies: The alleged benefits of this approach are probably outweighed by its costs; and the problem of stigma can and should be combatted in other ways.

Objection 5: An affirmative standard plays into the dominant, patriarchal conception of sexual agency; given the systematic oppression and subordination suffered by women, their affirmative consent is often not a true or valid expression of their sexual desires.
Replies: An affirmative consent standard is not a panacea. It cannot correct for all societal ills, nor can it deal with all aspects of what it means to “consent” to something. It is merely a step in the right direction.

Okay, that’s all I have to say for now. I’m sure there is more nuance and detail that needs to be explored. Nevertheless, I hope this has provided a useful overview of the argument.

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