The new California ‘Yes Means Yes’ law is certainly progress, but it’s not the complete answer.
True story: It was very late, and my friend’s cologne and pheromones had started to swirl together into a delicious chemical man-smell, setting my head spinning. He was one of the most attractive men I knew, and I’d been noticing during that night out clubbing with friends how his body language toward me showed a certain leaning-in, a territoriality, that set my heart thumping and my insides roiling against my ribs.
We were home now. The two of us stood in the kitchen still drinking and talking, and suddenly I realized with a shiver that his hand had moved to the small of my back.
The skin prickled under my shirt beneath his hand and all of my internal gravity shifted into his orbit. So I said the only thing I could think to say:
Sleeping in the back room was my boyfriend. He would not be OK with this.
My friend’s hands crept round my waist.
“I can’t,” I told him.
“I know.” One of his palms slid between my thighs.
“No,” I repeated.
But, with my body screaming yes louder than my brain’s no, I let him carry on.
And it was very good.
My partner found out about what happened, and as you can imagine, he was livid.
I suppose I could have defended myself by saying, truthfully, that I’d said no. But that would have been only part of my truth. So I didn’t.
The incident above is by no means intended to call into question the reported experiences of women who have suffered sexual assault. Nor is it intended as fodder for disgusting frat-house sentiments such as “No Means Yes, Yes Means Anal,” and I expressly forbid its distortion to support such idiocy.
In fact, I would like to politely request that any men reading this stop here. This is a delicate conversation capable of triggering severe trauma, and we as women need to be able to have it amongst ourselves first with full psychological safety. So, my dear male readers, really sorry about this, but I need you to please bow out of this one.
OK, women, now that it’s just us, I want to talk about the thorny issue of consent. In particular, about how complex the concept of consent can become when there’s more at stake than just physical desire. And—especially when you’re a woman—there’s always something more at stake.
The way we think about women consenting to sex is in flux right now, as seen in California’s recent “Yes Means Yes” initiative, a law that ties a college’s eligibility for state financial aid to a requirement that it use a standard of “affirmative consent” when investigating sexual assault cases. In other words, instead of asking “Did she say no?” (as a court would), the new standard requires internal investigation boards at colleges to ask “Did she say yes?”
I would agree with most of the U.S. feminist blogosphere that this is progress, of sorts. It will serve to change the balance of weight given to women’s testimony in sexual assault cases, which tend, according to dean Rachel Van Cleeve at Golden Gate University School of Law, to devolve into a “he-said, she-said” where the testimony of the accused is systematically prioritized over that of the accuser in the interests of due process.
Critics have bewailed the Yes Means Yes provision as “a terrible law.” The National Coalition for Men warns it will jeopardize due process, and gender studies professor Laurie Essig worries it will simply expand the “carceral state,” though as the law applies to colleges rather than courts, there is very little danger of it directly leading to men being imprisoned on insufficient evidence. (Courts must still use the usual “beyond a reasonable doubt” standard of evidence in rape cases.)
To me, though, a more important objection is the one uncomfortably raised by Shikha Dalmia at the libertarian magazine Reason, that is, that “such claims are based on a rather simplistic understanding of human sexuality that is out of touch with the lived experience of most people.”
Her point is borne out by my story at the beginning of this post. Feminist cheerleaders of the concept of “consent is sexy” refuse to engage with the reality of how desire interacts with the social calculations we women have to make when managing our sexualities. From the book of Deuteronomy to the Female Eunuch, we have long seen how social rules governing female sexuality repress women’s desire and punish women who are too free with their consent.
And deeply repressed we still seem to be. Journalist Daniel Bergner’s recent book What Do Women Want? Adventures in the Science of Female Desire explores the extent to which women’s reported levels of arousal in response to pornographic clips diverged from their actual physiological reactions. While men’s reported arousal tended to match their bodily response, for women, “irrespective of sexual orientation and reported levels of excitement, the women showed physical arousal when watching men with women, women with women, men with men, and even mating bonobo apes.”
“The results suggest a discord between how women’s minds and bodies register desire,” Guernica magazine observed in an interview with Bergner. In other words, likely as a conditioned response to millennia of social and economic punishment of “slutty” women, we have become experts at saying no even when our physical bodies are screaming yes.
In fact, a woman who gives a yes with careful consideration of all the variables at stake—ranging from “Is this person my boyfriend/husband?” Or if not, “How will my boyfriend/husband react to my sleeping with this person?” (probably not with glee, if you’re in anything like a standard monogamous relationship), to “How will I be seen in my social circle/job/college/church for sleeping with this person?”—could very well be thinking about desire last of all.
So what does consent actually mean when female desire is to an enormous extent divorced from the institutions meant to contain it?
I still don’t have the answer. And while Yes Means Yes is helpful in getting us to ask ourselves these questions, I don’t think it’s the complete answer yet either.
Samantha Eyler is a freelance American writer, editor, and translator based in Medellín, Colombia. She has written about politics, immigration, Latin America, and social justice for publications such as NACLA and the New Statesman. You can follow her on Facebook and Twitter.