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Commentary

Questionable Laws Turn Sex into a Police Process



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.

An estimated 80 percent of sexual assaults are committed by people the victims know. Consent already is a widely recognized legal and cultural standard for determining rape or sexual assault. Virtually all campus codes of conduct explicitly recognize the importance of affirmative consent before sex can be legitimate.

A legal mandate for verbalizing consent explicitly through one mechanism—a verbal yes—adds little to the effectiveness of these already existing codes and laws.

Moreover, “yes means yes” legislation effectively criminalizes millions of actions by individuals and partners that do not lead to rape or sexual assault. Rape and sexual assault still occur at unacceptably high levels, but the solution is not to criminalize normal, healthy behavior.

If our goal is to reduce the incidence of sexual assault, less draconian, more targeted and more nuanced approaches are available.

One such strategy focuses on influencing community norms. The sexual violence prevention program at Florida State University, called kNOw MORE, uses this approach to help students, especially the men on campus, better understand the meaning of consent, increase awareness of when a sexual assault may be taking place, and increase the likelihood that somebody will intervene when they think a sexual assault is taking place.

Other strategies empower men and women by teaching self-defense skills and educating them about environments and activities—excessive drinking, for example—that increase the risk of sexual assault.

This is not victim blaming. Empowerment strategies recognize the fact that sexual assault and rape are not random occurrences. Helping college students and young adults better understand the types of situations that increase the risk of sexual assault and giving them the tools to protect themselves, contribute to a safer, more respectful environment for everyone in the community.

“Yes means yes” legislation is misguided and has the potential to undermine the development of behaviors that build stable, healthy, long-term relationships for the vast majority of men and women.

Our efforts to reduce rape and sexual assault should not criminalize healthy sexual behavior. Rather, they should focus on reinforcing and expanding the respect we have for one another, our understanding of intent and consent, and the importance of relationships built on trust and communication in all of its many forms.


Samuel R. Staley is a Research Fellow at the Independent Institute and Director of the DeVoe L. Moore Center in the College of Social Sciences at Florida State University.






  • MyGovCost.org
  • FDAReview.org
  • OnPower.org
  • elindependent.org