Simon Says Sex: The Nature and Purpose of the "Affirmative Consent" Campaign
January 21, 2015 by Paul McKeever
Consent. By its nature, it is the difference between giving and stealing, between murder and assisted suicide, and between sex and rape. By its nature, it is the difference between victim and non-victim. In law, it is also the difference between guilt and innocence. Therefore, its legal definition, and the way it is judged to be present or absent, has a dramatic impact upon whether justice prevails or fails. It should concern everyone, therefore, that a small but vocal number of activists are promoting a new approach to consent that is certain to facilitate injustice, to endanger young children, to make sex repulsive, and to replace love and respect between men and women with fear, distrust, disrespect, animosity, and hatred.
It arguably started at Ohio’s Antioch College. In 1993, the “Womyn of Antioch” convinced the college to adopt a Sexual Offence Prevention Policy that now reads in part:
Consent means verbally asking and verbally giving or denying consent for all levels of sexual behavior…The person with whom sexual conduct is initiated must verbally express “consent” or lack of “consent’’. Each new level of sexual activity requires consent…Silence conveys a lack of consent.”
For the purposes of alleged sexual assault on Antioch’s campus, Antioch’s “affirmative consent” approach (hereinafter referred to as “Affirmative Consent”) effectively replaced the standard legal approach to determining the presence or absence of consent. In general, the standard legal approach requires one to consider all relevant evidence – including but not limited to words that have been spoken – to determine whether, in fact, a person has given consent. Under the standard legal approach, a spoken “no” usually will mean no (though not in every possible situation), and a “yes” will usually mean yes (though not in every possible situation). An utterance of the word “yes” or “no” is just one piece of evidence to be considered along with any other relevant verbal or non-verbal evidence (including non-verbal communications of “yes” and “no”, such as nodding or shaking ones head). Silence means neither “yes” nor “no” – just as silence does not communicate “I wish I’d ordered a bigger pizza” – though silence can be interpreted as an indicator of consent or refusal when viewed in the context of other evidence (as examples: was the person silenced by the pointing of a gun at his/her head?; was the person asked to say “no” if he/she did not want to engage in some form of proposed sexual activity?). The lack of a spoken “yes” does not prove a lack of consent when all of the relevant evidence favours a finding that consent existed in fact.
At the time, Antioch’s policy made it an easy target for mockery. In a 2007 L.A. Times column titled “Who Killed Antioch? Womyn” – about why Antioch College had to close – Meghan Daum wrote:
“…the attention to the Antioch policy, which got as far as a “Saturday Night Live” sketch, not only came to symbolize the infantilizing dogma of the new left, it turned an already obscure college into a laughingstock.”
Twenty-two years later, there is renewed interest in introducing Antioch-like Affirmative Consent policies in educational institutions, especially among cultural Marxists of the radical feminist variety. Those who have been pushing recently for the adoption of Affirmative Consent policies got a boost in September, 2014, when California adopted a law (senate bill SB967) that requires universities in that state to implement Antioch-like Affirmative Consent policies in order to continue receiving tax money. Since then, efforts to get schools to adopt such Affirmative Consent policies have commenced in numerous North American Jurisdictions, including Ontario, Canada.
In December of 2014, two grade 8 students of a Toronto public elementary school commenced an online petition titled “Make consent a topic in the 2015 Ontario Health Curriculum”. The petition states, in part:
“The curriculum needs to teach what clear, enthusiastic, and affirmative consent is and what it looks and sounds like. We want health education that teaches our peers “Yes means Yes”. That shares with our peers that affirmative consent is an enthusiastic “Yes Please!” between two people. We want education that shows us that there are many ways to say no. That educates young people that silence is not consent…Now that Kathleen Wynne has announced that consent will be in the curriculum, this petition acts as support for her decision.”
On January 9, 2015, Wynne, in response to their response, praised the girls in a tweet that read:
“@WeGiveConsent great interview this morning on @metromorning! Thanks for your important work! Let’s talk!”.
On January 7, 2015, the Toronto Star reported that:
“Wynne has asked Education Minister Liz Sandals “to finalize a new health and physical education curriculum that gets at some of the root causes of gender inequality, and starts at the very earliest stages to develop an understanding of healthy relationships and consent.” ”
These developments point to the likelihood that Ontario’s new sex education curriculum will indeed teach children “at the very earliest stages” the Affirmative Consent ideas that only a verbal “yes” means “yes”, and that silence means “no”.
Implementing Affirmative Consent policies in Ontario schools may well render them, like Antioch, “laughing stocks”, but that will be the least destructive effect. More destructive will be Affirmative Consent’s effects on justice, on those too young to have the capacity to consent, on sexual relations, and on trust and respect between the sexes.
Effects on Justice
To understand the implications of an Affirmative Consent policy for justice, first consider the following example. In the privacy of Bev’s dorm room, Pat asks Bev if Pat has Bev’s consent to kiss Bev. In response, Bev nods to Pat. Bev takes off all of Bev’s clothes, puts on some sexually suggestive music, and begins dancing about the room in a sexually suggestive way. Bev lies down on the bed, looks Pat squarely in the eyes, and gives a wink and a smile. Then Bev points at Pat, and makes a hand gesture suggesting that Pat approach the bed. Bev, still looking squarely at Pat, and still smiling, pats the bed to suggest that Pat lie on it with Bev. Pat does so. Their eyes locked, Pat slowly approaches Bev and lands a kiss on Bev’s lips. Bev smiles, asks Pat to leave, and Pat leaves. According to Antioch’s policy, if Bev later complains that Bev was sexually assaulted, Pat will be found guilty of sexual assault because Bev did not speak the word “yes” to indicate consent to the kiss, and because Bev’s silence, under the college’s policy, literally meant “no”.
Consider another example, this time focusing on the idea that, with Affirmative Consent, a verbal “yes” must be obtained at each “new level of sexual activity”. In the privacy of Pat’s dorm room, Bev asks Pat if Bev can kiss Pat. Pat says “yes”. Bev kisses Pat and, in the process, Bev extends Bev’s tongue into Pat’s mouth. The two say goodbye to one another, and Bev leaves. Pat files a complaint alleging that Bev sexually assaulted Pat. Specifically, Pat – quoting the school policy – asserts that Pat did not say “yes” to Bev inserting Bev’s tongue. Pat submits that because Bev did not obtain a verbal “yes” from Pat to insert Bev’s tongue, Bev sexually assaulted Pat.
If the University official who enforces the policy decides that inserting a tongue constitutes a “new level” of sexual activity, Bev will discover that Bev sexually assaulted Pat, because Pat did not say “yes” and Pat’s silence meant “no”. Exactly how Pat was supposed to say “yes” to tongue-insertion while kissing Bev – if that question comes up at all – will be a matter raised by those seeking to demonstrate the necessity of ending the kiss and asking for a “yes” before inserting one’s tongue.
If the tongue-kiss example seems unlikely or far-fetched, it should be considered that there are a host of other things that one might think need not one but two or three separate “yes” utterances. There are, for example, other places on one’s body in which tongues permitted to “lick” might be inserted during sex. There are also a host of this-usually-goes-with-that activities that one might unexpectedly assert should have been teased apart and authorized piece-by-piece. To take an admittedly graphic example, if our Pat is a woman who says “yes” to Bev’s request to stimulate Pat by inserting Bev’s finger into Pat’s vagina and moving it about, does that “yes” give Bev the consent that Bev needs to simultaneously rub Pat’s clitoris? Does it give Bev the consent to insert a second finger? Does the presence or absence of consent for the second finger implicitly depend upon the size of Bev’s fingers, or upon whether Bev is wearing a ring on the second finger, or upon the fact that Bev’s technique involves using two fingers to do what one finger cannot? In short: what constitutes a “new level” of sexual activity?
And who should determine what constitutes a “new level” of sexual activity?
Does the person who is being asked for consent get to make up his or her own personal rule-book of what constitutes a “new level”? If so, how is anyone to know and memorize – before unwittingly going to a “new level” – the content of the person’s personal “new level” rule-book?
Should the university put together a written code cataloguing every possible transition from one sort of sexual activity to another – from kissing this to rubbing that, or from rubbing that to kissing this – so as to identify every possible “new level” at which at least one person on this Earth might regard a “yes” to be needed? If it could be written in a non-contradictory way, any such catalogue necessarily would be too large for anyone to remember and, most certainly, would include transitions that many would assert are not “new levels”, especially when one considers the immense variety of religious and cultural differences that would somehow have to be accommodated.
In case there is any doubt about my interpretation of Affirmative Consent, consider the educational video recently released by an organization named “Ultraviolet”, which describes itself as “an organization of women and men fighting for women’s rights, from politics and policy to media and pop culture.” The video demonstrates how Affirmative Consent is supposed to work in practice. Titled “College Porn: Consent is Sexy“, the video starts with a pizza delivery guy mistakenly delivering a pizza to a student who has not ordered it. After he expresses sorrow for having attempted to deliver the pizza to her, she tells him that he does not have to be sorry. He replies that yes, his sorrow is appropriate because whether or not she wanted the pizza matters to him. Apparently sexually turned-on by the idea that he values the issue of whether or not she ordered a pizza, she kisses him. Afterward, she says “Is this okay”, to which he replies “yes”, and she continues kissing him. Still kissing, they move to her bed. He holding her hips, he and she fall on the bed, he on top. His hand already sliding down her waist and heading for her hips, he asks her “Is this okay?”, and she says “yes”. She pushes him over and onto his back, and kneeling over and straddling him, she holds the button-area of his jeans and says “Is this okay?”, to which he says “yes”. She undoes his button and, still straddling him, she continues to kiss him while rocking forward. She just starts to rock back toward his pelvis when the scene ends.
I leave to the reader his or her assessment of how “sexy” or romantic such constant verbal “yes”-seeking is. I will submit, however, that constant “yes”-seeking is utterly impractical, if not also completely at odds with the very differing forms in which consensual sexual activity occurs – and is expected to occur – both as depicted in works of fiction and as experienced in real life. Indeed, the fact that it is impractical may explain why even the young woman in the Ultraviolet video kissed the pizza delivery guy before asking “Is this okay?”. To understand the gravity of this de jure violation, remember: according to the Affirmative Consent standard, asking after-the-fact is acting upon silence, which is deemed to be acting after being told “no”, which is deemed to be a sexual assault. Moreover, according to the Affirmative Consent standard, it does not matter that the young woman was only kissing the pizza guy, and not having sexual intercourse with him. Yet the video producers for some reason felt that it was necessary to cheat a bit; to allow the whole thing to start with a kiss instead of with a plea for a “yes”. The young woman was shown to be impassioned by the pizza guy’s character. Without impulsively stealing a kiss from him without first obtaining his “yes”, neither the pizza guy nor the viewer would have had any idea of exactly how, and how deeply, she felt about him.
Luckily, for the young woman, the pizza guy responded positively to the young woman’s non-consensual smooch. What if the smooch had not been well-received? What if the pizza guy had been gay, or married, etc. and did not appreciate being treated like an object for the young woman’s sexual pleasure. Pursuant to an Affirmative Consent policy, he could instead have immediately turned, left the building, and filed a complaint with the university.
In fact, neither our pizza guy, nor our Bev, nor our Pat, in the various examples given above, need complain right away. Under Affirmative Consent, hours, days, weeks, months, or even years might pass before a complaint is laid. The delay is not to be considered as evidence of anything. Having stolen a kiss from the pizza guy, the young female student is now at the pizza guy’s mercy in fact and in law until she graduates. At any point before she graduates, he might file a complaint and damage her future forever. The Affirmative Consent standard gives him a way to extort her until she is finished school. Until she is finished school, he knows exactly who to call if he wants someone to write an essay for him, or to wash his clothes. She had “better play ball”, he might remind her from time to time, because “now, I own you”. It is almost as though – almost as infantile as had – he and she been playing a game of high-stakes “Simon Says”, in which he says “Simon says kiss me. Simon says hold my waist. Grasp my bum. Ah-hah! You’re guilty. I didn’t say Simon Says grasp my bum”.
It is important to understand the legal effect of adopting an Affirmative Consent policy. Because such a policy recognizes only a verbal “yes” as admissible evidence of consent, and deems silence to mean “no”, the policy regards all sexual contact to be sexual assault except when it is preceded by a “yes”. The context surrounding the sexual activity, the history of the interaction between the complainant and the accused person, sexually suggestive physical gestures, etc.: none of it will be admissible to establish whether there was, in fact, consent.
Whether a finding of not-guilty requires the trier-of-fact to decide that the “yes” probably was uttered, or that there is no reasonable doubt that the “yes” was uttered, is up for debate. However, either way, where it is established that sexual activity occurred, the Affirmative Consent policy smuggles in a reverse-onus: the presumption of innocence is jettisoned and replaced with a presumption of guilt. Such being the case, Affirmative Consent is not a small and innocuous precautionary step. It is a revolutionary, but sneaky and back-door assault that replaces the principle of “innocent until proven guilty” with the principle of “guilty until proven innocent”.
Effect on Children
Various laws set standards according to which a human being will be treated as being old enough to have the capacity to consent to something. Canada’s Criminal Code, for example, sets 16 (and, in some cases 18) as the minimum age at which a person’s “yes” constitutes consent to sexual contact (though, for understandable reasons, there are lower-age standards where similarly-aged young teens engage in sex).
Clearly, to a person deemed by law to lack the capacity needed to give consent, lessons in Affirmative Consent will be useless at best, and harmful at worst. Those children who are capable of comprehending the combined effects of lack-of-capacity (which is normally first taught in law school) and Affirmative Consent policies quickly will conclude that their time is being wasted because they will know that even a verbal “yes” does not mean yes when it is uttered by a person lacking capacity to consent. For the many more children who are likely to be bewildered by all of this legal stuff, the more likely effect will be that they leave class thinking that a grade 3 student who says “yes” has consented to sexual activity…even with an adult of former Ontario sex education curriculum head Ben Levin’s age. NAMBLA members and other libertarians – who wrongly regard legal “age of reason” standards as “big government” violations of individual liberty – no doubt will rejoice, perhaps while unzipping their flies, should school children be subjected to lessons in Affirmative Consent.
Even if Affirmative Consent were not a destructive redefinition of consent, there is simply no upside to teaching “yes means yes” to children who are too young to have the capacity to provide actual consent. We have not yet seen what exactly Ontario Premier Kathleen Wynne means by teaching consent “at the earliest stages” in Ontario’s schools, but the public should pay particular attention to exactly how young a student will be when being introduced to the Affirmative Consent idea that “yes means yes”.
Effect on Sexual Relations
If Affirmative Consent policies are implemented in our colleges and universities, compliance with those policies is sure to discourage sexual activity altogether. Few people actually want to assault another person. Fewer still have any desire to be ostracized, to be shamed, to feel guilt, to fear being criminally charged, or to be criminally charged. Also, nobody wants to open themselves up to the possibility of being extorted. Faced with the legal minefield that is set up by Affirmative Consent policies or laws, abstinence becomes the safest policy and, possibly, the only smart one…which brings us to the last effect.
Effect on Relations Between Men and Women
It would be an injustice also not to consider exactly who is pushing for Affirmative Consent, and why. Most certainly, the vast majority of people supporting Affirmative Consent will be people who do not know what it involves or implies. “After all,” most will think, “how could anything that is both ‘affirming’ and ‘consensual’ be bad?” The very term Affirmative Consent is akin to Newspeak’s “double plus good”. However, after learning of Affirmative Consent’s nature – of its impracticality, of its implicit reversal of “innocent until proven guilty”, of the vulnerability with which it could leave children, and of the negative impact it will have on sexual relations – who would actually want to see Affirmative Consent policies adopted, and why?
There may be numerous ends served by Affirmative Consent policies, but most certainly, and most obviously, they serve the interests of anyone who wants to drive a wedge between men and women; anyone who wants to characterize men and women as two separate collectives with opposing collective interests; anyone who feels at war with the opposite sex, and wants to make others feel the same way. In short: man-haters, woman-haters, and cultural Marxists.
Why would anyone want such a state of affairs? How could anyone benefit from such sexism, animosity, and war? Consider a fictional account, from a novel that, year after year, appears increasingly prophetic: George Orwell’s totalitarian dystopia “1984“. A few of its passages about sex, men, and women are stunningly enlightening:
“The aim of the [totalitarian governing political] Party was not merely to prevent men and women from forming loyalties which it might not be able to control. Its real, undeclared purpose was to remove all pleasure from the sexual act…[Winston] did not know why this was so, but it seemed natural that it should be so. And as far as the women were concerned, the Party’s efforts were largely successful.
“Unlike Winston, [Julia, Winston’s forbidden secret lover] had grasped the inner meaning of the Party’s sexual puritanism. It was not merely that the sex instinct created a world of its own which was outside the Party’s control and which therefore had to be destroyed if possible. What was more important was that sexual privation induced hysteria, which was desirable because it could be transformed into war-fever and leader-worship. The way she put it was:
‘When you make love you’re using up energy; and afterwards you feel happy and don’t give a damn for anything. They can’t bear you to feel like that. They want you to be bursting with energy all the time. All this marching up and down and cheering and waving flags is simply sex gone sour. If you’re happy inside yourself, why should you get excited about Big Brother and the Three-Year Plans and the Two Minutes Hate and all the rest of their bloody rot?’
That was very true, he thought. There was a direct intimate connexion between chastity and political orthodoxy. For how could the fear, the hatred, and the lunatic credulity which the Party needed in its members be kept at the right pitch, except by bottling down some powerful instinct and using it as a driving force? The sex impulse was dangerous to the Party, and the Party had turned it to account.”
“The old civilizations claimed that they were founded on love or justice [said high-ranking Party member O’Brien to Winston, as he continued his torture and murder of Winston]. Ours is founded upon hatred. In our world there will be no emotions except fear, rage, triumph, and self-abasement. Everything else we shall destroy everything. Already we are breaking down the habits of thought which have survived from before the Revolution. We have cut the links between child and parent, and between man and man, and between man and woman. No one dares trust a wife or a child or a friend any longer. But in the future there will be no wives and no friends. Children will be taken from their mothers at birth, as one takes eggs from a hen. The sex instinct will be eradicated. Procreation will be an annual formality like the renewal of a ration card. We shall abolish the orgasm. Our neurologists are at work upon it now. There will be no loyalty, except loyalty towards the Party. There will be no love, except the love of Big Brother. There will be no laughter, except the laugh of triumph over a defeated enemy. There will be no art, no literature, no science. When we are omnipotent we shall have no more need of science. There will be no distinction between beauty and ugliness. There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — for ever.’ “
One has to be mindful of, and honest about, the context of the current push for Affirmative Consent policies. The media in 2014 put allegations of sexual assault front and centre, and left them there, day after day. Sometimes, they reported – for maybe a day or two – about actual court cases and proven guilt, such as the case of former Quebec high school teacher Tania Pontbriand, who was convicted in 2014 of having sexually exploited one of her students; or the case of Scott Stanley, a former Scout leader who was convicted of molesting little boys. Sometimes they reported about people being criminally charged, including a police officer and a well-known radio personality: the ongoing nature of legal proceedings got more continuous coverage, especially where the accused was a famous, wealthy, powerful, and (until accused) trusted male. Arguably though, the greatest amount of reportage and opinion-writing was dedicated to allegations of sexual assault where no charge has been laid, and nobody is suing the accused. Such allegations have been newsworthy for the sole reason that the alleged wrongdoers are wealthy, famous, influential and (until accused) largely trusted males, like Woody Allen, Prince Andrew the Duke of York, or, of course, Bill Cosby. Too many people love to see a fall from grace, especially from the highest heights, and that fact makes it easy to plump up a radical feminist narrative. The sheer number of sexual allegations reported, usually about men, tends to make one less critical. People cease to fact-check, or even to care about the existence or non-existence of actual evidence. The constant drip, drip, drip of allegations – not unusually, the same allegations, by the same people, repeated over and over again by the media, but spread just far enough apart that one thinks one is hearing a new allegation – wears on people over time, until hearing that yet another famous male is being accused of sexual assault has the same effect as actually seeing video of yet another theocratic terrorist shooting and killing someone. “If even those rich, famous, and admired men might be sexual predators”, we are meant to believe, “every man is a sexual predator, and we live in a rape culture”.
When it is not being said expressly, the implication of the idea that we live in a “rape culture” is the idea that men hate women. Period. That men want to harm and use women. That men and women are two separate collectives at war with one another (even if most men and women do not notice such a war), that men are causing the war, and that the government needs to do a better job of defending women from men. The pay-off of all of this for radical feminists and other cultural Marxists: political support for redistributing wealth, power, influence and admiration from men (i.e., the male collective) to women (i.e., the female collective).
What is the Achilles’ heel in this Marxist bid to seize money and power? Love and, especially, sex. Specifically, romantic love, trust, and respect between men and women. As Orwell so succinctly identified in his book, love between men and women must be discouraged and replaced with hatred, distrust, and never-ending war. Sexual intercourse must not valued as an expression of love and a source of mutual physical pleasure. Instead, as radical feminist author Andrea Dworkin put it, we must all come to see sexual intercourse as “the pure, sterile, formal expression of men’s contempt for women.” The reason is simple: love, trust, and sex between a man and a woman undermines the woman’s loyalty to the female collective, undermines the man’s loyalty to the male collective, and removes both the woman and the man from giving a damn about how much wealth or power women or men have as a class or collective. Loving, trusting, relationships between men and women undermine attempts to breed hatred and distrust between made-up male and female collectives, and threatens to undermine support for the redistribution of wealth and power between the collectives.
To minimize the threat posed to cultural Marxism by heterosexual love, sex – especially between men and women – must be made difficult, scary, impractical, perilous, and not worth the hassle. Affirmative Consent goes a long way to making it such. For that reason, the most well-informed champions of it will tend to be radical feminists and other cultural Marxists.
I will close with a bit of a prediction. Should Affirmative Consent policies be instituted in our schools, the cultural Marxists will not end it there. The stage will have been set for them to argue that there is a double standard; to argue as follows:
“In our universities, the glorious adoption Affirmative Consent policies has given young womyn protection against the misogynistic, patriarchal hordes constituting the inherently predatory male collective but, when womyn leave university, they lose that protection. Suddenly, female graduates are stripped of their protection. They are thrown to the wolves. We must end the double standard! We must adopt the Affirmative Consent standard in Canada’s Criminal Code. Sex between a man and a womin must come with a presumption of the man’s guilt, the womin’s silence must be deemed to mean “no”, and only proof beyond a reasonable doubt that the womin said “yes” should be admissible as evidence of consent.”
Get ready for it. It is most certain to follow the adoption of an Affirmative Consent standard in our colleges and universities. And, if they teach Affirmative Consent to our children “at the earliest stages”, when they’re good and young and can be “groomed” for use by cultural Marxists, you can pretty much bet the farm that the adults of tomorrow will see nothing wrong with “guilty until proven innocent”…and nothing trustworthy or valuable about the opposite sex.