Unpacking Affirmative Consent: Not as Great as You Hope, Not as Bad as You Fear

This Article aims to “unpack” the concept of affirmative consent by identifying common assertions about affirmative consent that are false or misleading and by separating issues that are commonly conflated. The goal here is not to advocate either for or against the notion of affirmative consent but to clarify the concept to show what is at stake (and what is not at stake) in these debates.

Part II of this Article sets forth definitions of affirmative consent, particularly noting the difference between policies that require unambiguous agreements and those that do not. Part III addresses the various misconceptions identified above. Section III.A discusses the “yes means yes” slogan. Section III.B notes that affirmative consent does not mean express verbal agreement. Section III.C explains that affirmative consent is different from unambiguous consent. Section III.D discusses the shift from “no means no” to “yes means yes,” noting that this change in the law has already occurred in most jurisdictions, regardless of whether the jurisdiction uses the term “affirmative consent.” Section III.E discusses the role of silence under affirmative consent policies, analyzing a significant ambiguity on this point. Section III.F seeks to dispel the perception that in many sexual encounters, the parties fail to indicate their interest in sex.