Affirmative consent was first articulated on college campuses in the United States in the 1990s. Affirmative consent demanded verbal, positive consent during each sexual encounter, and for each individual part of the sexual activity. Consent had to be meaningful and enthusiastic. While later interpretations would shift and change, and in many instances, non-verbal communication might count as affirmative consent, the model required active and positive participation from everyone during a sexual encounter. An absence of agreement—through silence or passivity—does not meet the standard of affirmative consent.
This chapter outlines what affirmative consent was and is, how and why it developed, and why it has been widely imagined as a useful tool for navigating sexual encounters, and for preventing sexual violence. It charts what was initially a radical, alternative suggestion, to a concept that is now institutionalised in the mainstream. Just as importantly, it investigates the challenges of affirmative consent, in particular noting that power imbalances do not allow all people the freedom and bodily autonomy to assert consent. The chapter examines cases where affirmative consent cannot be freely given or denied, including situations where intimate partner violence occurs, or where other practices of coercion or powerlessness are in place. Finally, the chapter traces some of the recent legislative changes across Western cultures, which have enshrined affirmative consent in the law, despite the challenges of ensuring equal access to autonomy.
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It is unsurprising that colleges in the United States emerged as leaders in attempts to manage sexual assault: statistics suggest that in the United States, one in five women enrolled in a bachelor’s degree experience sexual assault before graduation (Muehlenhard et al. 2017). With commentators calling sexual violence on college campuses an ‘epidemic’, students themselves drove early moves towards defining and articulating a new vision of consent (Pugh and Becker 2018, 1). In the wake of a series of sexual assaults on campus, students at the liberal arts institution Antioch College in Ohio developed an early, innovative model of consent. Led by a radical feminist group the Womyn of Antioch, affirmative consent was adopted as internal college policy by the Board of Trustees in 1991 (Metz et al. 2021, 53; Rosman 2018). Antioch’s Sexual Offense Policy outlined that:
Consent is an on-going process in any sexual interaction. Verbal consent should be obtained with each new level of physical and/or sexual contact or conduct in any given interaction. (Abrams and Herman 1994, B3)
Antioch also had a firm policy on sex education, with all incoming students required to attend a workshop which carefully explained the policy. The workshop spelled out the need for verbal affirmative consent ‘each step of the way’ and that consent was not ‘meaningful’ if the participant was inebriated by alcohol or drugs (Gross 1993, 1).
Antioch’s policy was revolutionary on a number of grounds. It was driven by young people, as active agents in disrupting social norms around sexual violence. It de-gendered sexual assault, acknowledging that men could be victims as well as offenders. It provided firm policy around the disclosure of sexually transmitted diseases to intimate partners, including HIV and AIDS. Most importantly, it highlighted the need for explicit verbal consent to sexual activities, with supporters noting that:
When verbal communication is not a central part of the sexual encounter, false assumptions may and do occur. Misreadings of body language may prevail… one person might be experiencing a “good time”, while the other is experiencing a sexual assault. Under our policy, the two are distinguishable because of the requirement of verbal consent. (Abrams and Herman 1994, B3)
The policy was reported as having the support of the majority of students (Abrams and Herman 1994, B3), yet there were certainly opponents. As one freshman told the training group, ‘If I have to ask those questions I won’t get what I want’ (Gross 1993, 9). One can only imagine his surprise to find that was exactly what the policy intended.
The Antioch policy was widely mocked in the mainstream media, including an infamous sketch on Saturday Night Live (Serisier 2020). Yet, over time the ideas fermented across other institutions, and rules around affirmative consent were further defined and refined across American colleges from around 2014 onwards. Spurred on by growing numbers of complaints of sexual assault through Title IX (an initiative that requires colleges to protect gender rights, at the risk of loss of federal funding), administrators were looking for new and innovative answers. The focus on sexual assault on campus was bolstered by the Obama administration’s campaign ‘It’s On Us’, and the formation of a federal Task Force that drove colleges to clarify their policies on consent (Angiollo 2018, 881). In this climate, affirmative consent was seen as having the potential to be transformational. The affirmative consent policy at Yale University is a good example of the trend, with the college articulating:
Sexual activity requires consent, which is defined as positive, unambiguous, and voluntary agreement to engage in specific sexual activity throughout a sexual encounter. Consent cannot be inferred from the absence of a ‘no’; a clear ‘yes’, verbal or otherwise, is necessary. Consent to some sexual acts does not imply consent to others, nor does past consent to a given act imply present or future consent. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. . Consent can only be accurately gauged through direct communication about the decision to engage in sexual activity. Presumptions based upon contextual factors (such as clothing, alcohol consumption, or dancing) are unwarranted, and should not be considered as evidence for consent. . Although consent does not need to be verbal, verbal communication is the most reliable form of asking for and gauging consent, and you are thus urged to seek consent in verbal form. (Cited in Novack 2017, 304)
By 2017, researchers could comment on the ubiquity of affirmative consent rules on American college campuses, noting that both students and administrators saw affirmative consent policies and procedures as ‘necessary interventions to address reports of soaring rates of sexual violence on campus’ (Novack 2017, 302).
The push for affirmative consent policy originated in US colleges and amongst legislators who funded them, but interest quickly moved beyond the college populations and into mainstream politics. Could affirmative consent be the answer to the broader problems of sexual assault in Western cultures? Internal college policies were adopted into law in some states. In Californian law, for instance, from 2014, all students in state-funded universities were expected to adhere to affirmative consent rules, as follows:
It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. (Cited in Witmer-Rich 2016, 62)
Ideas of affirmative consent were picked up beyond the United States, across many Western nations. The following discussion focuses largely on the Global North, where these ideas have fermented and in some cases been legislated, and further work will need to be done on the majority of the world. Here, we trace ideas of affirmative consent in North America, Europe, Australia, and other nations, where, as Katelyn Rose Malae (2022) has argued, affirmative consent went from marginal—mocked and derided when first initiated at Antioch College—to something quite conventional.
Just as consent itself is a slippery concept in both society and the law, affirmative consent is subject to multiple definitions, and even in the microcosm of colleges, there was a muddiness to the definitions. While Antioch College insisted on verbal consent, other conceptualisations of affirmative consent did not. In a good early summary, legal scholar Lucinda Vandervort (2012, 402) suggests that affirmative consent ‘must be communicated or it will be legally ineffective to give the other person permission to engage in sexual touching. Communication may consist of either words or conduct but must be express, explicit, and unambiguous’. If a lack of consent (‘no’) was the basic standard expected to distinguish sexual acquiescence from sexual assault, affirmative consent should move this to an active, even enthusiastic, ‘yes’. 1 It can be verbal ‘yes’, or through their actions. Affirmative consent must be shown dynamically and positively. Affirmative consent demands active signs of agreement to sexual activity, not only the lack of a direct refusal.
Affirmative consent is, as in the Antioch model, a continual negotiation, not a one-off agreement. Affirmative consent needs to be agreed upon throughout the sexual encounter. At best, these expectations are clearly laid out in legislation. For instance, in Denmark’s Penal Code’s Committee Report on a voluntariness-based rape provision (2020), affirmative consent was argued for in the following way:
The Committee’s minority conceived consent as ‘something mutual’ and ‘a common desire’ to have sexual intercourse. The minority maintained that under a consent-based provision, the relevant issue of proof would concern the actual presence of consent rather than the absence of an agreement. A consent-based rule would necessitate that each party agreed to have sexual intercourse. Consequently, anyone who initiates sexual activity becomes bound by the duty of clarification. Therefore, it was alleged that a consent-based provision would change the present evidentiary focus. The question would be whether the complainant consented and whether the accused had reason to believe that the victim agreed to the other party’s sexual advances. (cited in Vestergaard 2021, 21)
There is a difference, of course, between a lack of positive consent and evidence of clear objection. This means that an absence of agreement (through silence, through passivity, through submission) does not meet the standard of affirmative consent. Furthermore, it was no longer enough to ‘believe’ a person consented, but this consent must be shown in either words or actions. Some legislators have demanded more and defined affirmative consent as ‘clear’ or even ‘unambiguous words or actions’ (Witmer-Rich 2016, 64–65).
Most notably, affirmative consent means the person initiating sexual activity has to ask for consent to do so (Vestergaard 2021, 20). This is a profound shift in the power dynamics of defining sexual assault: affirmative consent shifts the burden of action from one party to the other. No longer is one party expected to assertively say ‘no’, with consent being assumed if either party is quiet or passive. Instead, the onus is on the sexual initiator to seek active approval for the sexual act and other sexual acts that might come. Affirmative consent switches the focus to the offender: what did the accused do to understand consent? This effectively recalibrates the model of consent and the burden of proof. Before affirmative consent, it is assumed that consent is present unless someone says ‘no’ or otherwise withdraws the consent. In trials for sexual assault, then, a great deal of the court’s time is spent ascertaining if and how a person withdrew consent, and if the other party knew it was withdrawn. Affirmative consent offers a solution, and the law then ‘presumes that a woman does not grant consent unless she is asked’ (Little 2005, 1347). And in cases that go to trial, where the complainant says she did not consent, and the accused did not ask, within an adversarial trial system, the accused will be required to show how consent was sought. The burden of proof shifts; the accused may need to take the stand in an attempt to prove consent (North 2023, 5).
This is particularly helpful to women who might experience unwanted sexual contact, but lack the capacity to say ‘no’. This is typical when drugs or alcohol are part of the sexual encounter, but can occur in other circumstances, too. A common response to sexual assault can be to ‘freeze’, which is well documented in scientific, legal, and cultural literature (Mann 2021). Having a strong concept of affirmative consent helps this in two ways. First, if sexual partners are navigating a sexual encounter, and one partner freezes, the sexual encounter should pause and end. This may help partners (especially those without significant power imbalances) navigate their sexual activities more fairly, and more clearly. Second, if a sexual encounter does take place, it should be more difficult for an accused person to say they assumed silence as consent. The accused would need to show that he or she did take some kind of action, to ensure consent. This tightens up ideas of ‘reasonable belief’ (Snell 2022, 68).
Of course, all of these scenarios are messy in the real world, and sexual assault would continue to be challenging to prosecute, but nonetheless, affirmative consent adds some parameters for understanding that a person might go silent or freeze during an unwanted sexual encounter. Significantly, it reframes the focus of the trial around the defendant, rather than the victim-survivor. In rape trials, historically it is the complainant who comes under scrutiny: it is her dress, her body, her actions, where she is, what she said, and how much she had drunk that came under investigation. The complainant was on the stand, sometimes for days, addressing questions over her actions and appearance. While rape law reforms from the 1970s and 1980s have gone some way to control the questions she was asked on the stand, evidence suggests that the adversarial trial continued to allow for the harassment of the complainant, in multiple ways (Burgin and Flynn 2021, 347–349; Featherstone 2021, 234–242).
One of the most significant benefits of legislating for affirmative consent is that it helps push and formalise cultural change: it establishes a framework for young people and indeed all people to expect and demand enthusiastic consent. At best, it can normalise the articulation of consent during each and every sexual encounter. It also allows for a model where female desire and pleasure are visible and even enunciated. As feminist scholars have noted, ‘affirmative consent necessitates that women … have an active and eager role in their own sexual experiences’ (Metz et al. 2021, 54). On the surface, the ‘yes means yes’ affirmative consent model was supported by campaigns such as the ‘Consent is Sexy’ poster series, which ran on American campuses from 2011 (Malae 2022, 1134; Hovick and Sliver 2019). Yet there is also a deeper message here about agency, which empowers women to advocate for their own sexual autonomy. Of course, we run the risk of normative gender roles assuming men are the stereoactive players, the “askers” and women are the passive, those asked. Nonetheless, a heightened dialogue (both spoken and unspoken), which centres the desires and experiences of all parties in a sexual encounter, is positive, not just in terms of preventing sexual assault, but more broadly as well.
Thus the ‘enthusiastic yes’ seems a very fine place to start discussions about consent. As an educative tool, especially for young people, it is a concept that would ideally be grounded in education about autonomy over their own body, from an early age. Children, for example, might be taught that their choices would be respected: they would not be forced to give an adult a kiss as a greeting, or they might be asked first for a hug. As one sex educator has suggested, children need to know that they are the ‘boss of their own body’ (Hakanson 2023). The aim is to build knowledge around boundaries, decision-making and autonomy, in age-appropriate ways, and via verbal consent. Over time, this language can be built upon, to discuss the specifics of sexual consent.
For older children, in recent years, there has been a range of sex education texts that deal with consent: chatty in tone, often using cartoons and comics, they seek to inform and engage. In these texts, consent is contextualised within wider discussions about autonomy and agency, and ensuring ‘It’s wrong for people to make us do something that we don’t want to do. It’s also wrong for us to make someone do something that they don’t want to do’ (Hancock 2021, 6).The better works also encourage readers to think about the complexities about sexualities and of consent and affirmative consent. Justin Hancock (2021), for instance, in his book Can We Talk About Consent, widens definitions of sexual encounters, does not focus on heterosexuality, and is inclusive of disability and other intersections. There is also an acknowledgement of the unevenness of people’s ability to consent, which is a useful framework for thinking about consent in both everyday life and sexual encounters (Hancock 2021, 22–23). Likewise, the pocket-size book Welcome to Consent by Yumi Stynes and Melissa Kang (2021) is inclusive in language and material and discusses that people with different cultures, backgrounds, and abilities might have different views on consent, touching, and bodily autonomy. Stynes and Kang also discuss some of the challenges teenagers face in navigating relationships, including peer pressure, alcohol, and safety.
Texts such as these, aimed at young people, offer valuable ways to think about affirmative consent. As one study of adolescent attitudes towards consent concluded:
Positive evaluations of affirmative consent may lead to decreased sexual assault by reducing misunderstandings between sexual partners, clarifying legal definitions of sexual misconduct, and encouraging sexual scripts marked by enthusiasm and mutuality. (Javidi et al. 2020, 1105)
Yet despite these profound advantages in a shift to a model of affirmative consent, there are significant problems with notions of affirmative consent, as the rest of the book explores.
The core problem with affirmative consent is one of power: some people simply cannot say ‘no’. Sex involves power differentials, involving age, gender, sexual orientation, race, ethnicity, disability, experience, and so forth. Affirmative consent, by its nature, involves an agency and autonomy that not all actors will have. Navigating these complex terrains of power and authority means that affirmative consent is, at its core, problematic in both theory and practice.
For instance, studies from numerous disciplines have explored the ways young women can have difficulties saying ‘no’ to sexual partners, even in relationships without violence or the threat of violence. Research reveals that even amongst those who understood the philosophy of affirmative consent, teenage girls could be uncomfortable with saying ‘no’, and relied on nonverbal cues to show their consent lack of consent. In contrast, their male partners interpreted both silence and lack of resistance as consent (Righi et al. 2021, NP8298–NP8304). This disjunct could have profound impacts. In a close study of young women in the north-east United States, on their decisions to have sex, the women reported rarely giving verbal consent, but rather consent ‘was considered implied because it was “assumed”, “expected”, or “alluded to”’. The young women reported feeling unable to control the situation, express their own preferences, or feeling that they could not say ‘no’ once they had begun kissing or other activities. For the young women, sex seemed ‘inevitable’, as one described it (Fantasia 2011, 123–124).
In another study, sociologists Geraldine Brady and Pam Lowe interviewed young people in the West Midlands, England, to explore issues of consent, relationships, sex education, and the potential for exploitation. Many of the interviews revealed a tendency of young people to ‘please’ their partners and to engage in unwanted sexual activity because it was easier than saying no, or in order to maintain their romance or relationship (Brady and Lowe 2020, 84–85). These young women (and they were in this case, women), might have said ‘yes’ and hence met the affirmative consent hurdle, but nonetheless did not necessarily desire sex, or indeed may have even actively wished it would stop. Yet they made the autonomous decision to continue with sexual activity, as they were not empowered to do otherwise, or they decided that they would, in the main, prefer to continue with unwanted sex. Was this a sexual crime, on the part of the instigator? Not necessarily, but nor were all participants able or willing to action the idea of affirmative consent. This is compounded when younger women are dating older or more experienced men (Brady and Lowe 2020, 84–85), or when young people—especially adolescents—do not have the skills to negotiate consent (Javidi et al. 2020, 1101). There can be considerable awkwardness about navigating verbal consent, which young people may see as an impediment (Schumlich and Fisher 2020, 1115).
The issue is even more complex in relationships that already involve violence, coercion, or threats, including domestic and family violence. Familial violence is a common life experience across communities, and sexual assault can be one part of a broader pattern of violence. In these instances, the victims may fear that saying ‘no’ to sex will cause an escalation of harm, to themselves, to children or other family members, or to pets. In some jurisdictions, there have been attempts to acknowledge these challenges. In New South Wales, Australia, for instance, concepts of ‘force, fear of force or fear of serious harm of any kind’ have been extended beyond traditional understandings and can be used to show that victims of domestic and family violence cannot consent if they in fear of their own safety, the safety of their children or animals—even if physical violence did not occur at this specific time (Snell 2022, 69). But a simple concept of affirmative consent cannot necessarily protect or empower victims of intimate partner violence nor can it support them towards bodily autonomy and sexual rights.
Similarly, affirmative consent does not provide clear solutions for intimate partners dealing with the complexities of sexual coercion. Sexual coercion is defined as ‘psychological pressure to engage in coerced sex … in the absence of physical force or explicit threat of force’ (Pugh and Becker 2018, 4). This might include ‘emotional demands or social pressure … [or] psychological appeals’ (Schulhofer 1998, 97). In these instances, a person might not wish to engage in sex but will be coerced verbally: nagged, pressured, intimidated, dominated, and made to feel obliged. In the end, the sex might be unwilling or unwanted, but consensual (or at least complied with). It is not, in the end, criminal in most jurisdictions. In many cases, there are extant social pressures brought to bear, including cultural expectations on when sex is “due”. These too can be used to coerce sex, when a partner is unwilling.
There can be considerable blurring of the boundaries of violence and coercion. Coercion can often be underscored by fear of force, either real or imagined. Certainly, studies report that ‘men that verbally coerce their girlfriends into sex also may be more likely to have been physically violent in the past or are more likely to become physically violent in the future’ (Pugh and Becker 2018, 10).
There are also obvious complications with nonverbal affirmative consent, where offenders may not recognise a lack of consent. Research suggests that men tend to interpret consent to sexual activity in many everyday actions and body language (Sandoz 2021, 717). Even when people can recognise affirmative consent in theory, they do not always enact it (Sandoz 2021, 715). Just as significantly, it may be that some people cannot understand the finer principles of affirmative consent, especially nonverbal cues. Many young people lack the skillset and training to navigate affirmative consent (Schumlich and Fisher 2020, 1108–1121). In one recent study, for instance, researchers sampled 442 college students, testing their responses to certain sexual scenarios. The study showed that, even amongst college students, there was considerable variance in reading or misreading nonverbal consent. A small number of students interpreted lying still or avoiding eye contact as a form of consent. Others interpreted sexual arousal as consent (despite the involuntary nature of physical responses). Thus, even amongst a relatively homogenous body of students, there were considerable differences in their interpretations of consent and nonverbal signalling (Mattson et al. 2022).
Finally, affirmative consent cannot solve the problem of an offender who literally does not care about the consent of their partner: the aggressor who will assert their sexual demands, whether there is consent or not. As philosopher Lois Pineau (1989) has shown, some men admit that they ‘wouldn't take no for an answer’. Encounters where a lack of consent is voiced but ignored are far more common than myths about rape suggest, and studies have shown that many victim–survivors voice a lack of consent or physically resist but the offender continues anyway (Edwards et al. 2014, 2534; Crown and Roberts 2007, 392).
Ideas of affirmative consent assume bodily autonomy and an ability to speak up. This may not be the case for all social and cultural communities. There are long histories of some groups lacking bodily autonomy including, most obviously, enslaved people. But views about sexual availability can, at worst, inform thinking about many communities including First Nations people. Sexual access was one of the so-called benefits of colonisation for the colonisers, and vestiges of this thinking have left some Indigenous women and children vulnerable to colonial and patriarchal sexual expectations, both in the past and present (Native Women’s Association of Canada 2018; Anderson et al. 2017; Ryan 2019). It is simplistic to assume affirmative consent can overcome generations of sexual exploitation.
Further, as sociologist Jenny Maturi (2022) has shown, not all people have the tools to discuss affirmative consent. Her work amongst migrant and refugee groups in Brisbane, Australia, has highlighted the willingness of communities to engage with the idea of “my body = my consent”. Migrant organisations have produced excellent resources on consent and sexual violence that have been translated and distributed (Maturi 2022). At the same time, refugee communities will face complex problems including intergenerational trauma and dislocation, as well as diverse views on gender and sexuality. It is critical that the nuances of different groups are considered, as issues of consent are modelled and taught (see Chapter 5, this volume, for more).
There are other tensions, too, around the ways gender and sexuality are understood. Even when gender-inclusive language is attempted, affirmative consent frameworks tend to operate on gender dichotomies or even stereotypes: in the cultural imagination, all too often men are interpreted as the instigators of sex (the seekers of the consent), while women are imagined as the resisters or at least as more passive (the givers of consent or non-consent). The reality is that research on sexual violence shows men are almost always but not absolutely, offenders, and women or children are commonly the victims and survivors. The sexual scripts that emerge from affirmative consent models assume certain gendered stereotypes around sexual desire and activity, even as researchers do their best to unpack them. But it is a convenient shorthand to write of male offenders and female victims. This stereotype plays indirectly to ideas of consent where women are imagined as the person who must be convinced or who must consent. So where does this leave women who actively desire sex, surely something we might want at the heart of the sexual encounter?
The lack of nuance around gender and sexuality can also mean that affirmative consent models exclude some groups, in particular those in LGBTIQA+ communities. This is a particular problem as LGBTIQA+ people, and especially non-binary and trans people, are amongst the most sexually vulnerable groups, who experience sexual violence at higher rates than cis-gender groups. If affirmative consent is discussed in a gender binary with heterosexual actors, where does this leave people who sit outside these constructions? It is true that a non-binary person can legally draw upon affirmative consent, but do they have the social and cultural reference points to do so? Some LGBTIQA+ communities are already ahead of the mainstream in terms of intimate discussions about both sex and consent. Most notably, players in BDSM have well-practised rules and negotiations around sexual encounters; they know their physical and mental safety depends on it (Fencl 2021). From the moment of “coming out”, LGBTIQA+ people more broadly have also had to engage in more overt discussions about gender and/or sexuality than cis-gender straight people. This may help provide young people with a language and framework for thinking about sexuality and possibly consent. Yet the focus on heterosexual models of masculinity and femininity may mean that affirmative consent is an inherently exclusionary framework for thinking about diverse sexual and gendered encounters.
Read together, the potential for exclusion of some community groups, alongside the series of problems with offenders adhering to affirmative consent, point to serious gaps in the conceptualisation of affirmative consent policies. This is unsurprising. Many researchers across a raft of disciplinary fields have shown the limits of legal reform in forcing social change (Scutt 1980; Featherstone 2021; Daly 2011; Serisier 2018). Legislative reform—no matter how well-intentioned—is closely intertwined with culture. Affirmative consent laws have been driven by cultural change, but such change is fragmented and incomplete. It may also backfire, acting to criminalise men who are most vulnerable, including First Nations men, while leaving those with good lawyers and cultural capital relatively untouched. In this way, we argue that affirmative consent is important, but that it is not enough, in and of itself. At best, new laws and the debates these necessitate can help drive cultural change. In reality, however, there can be considerable lags in the application of the law.
There remain pragmatic problems with prosecuting trials involving affirmative consent—much as consent is a problematic concept in court, affirmative consent can also be tested. As Nicholas J. Little (2005) has noted, the trial still retains a ‘he said, she said’ conundrum. How to prove whether consent was affirmative? It does not, as Little argues, ‘prevent the accused from claiming that he asked permission, and the woman gave it to him’ (2005, 1347).Other scholars have noted that ‘Implied consent continues to function in rape trials’ with women’s behaviour—sometimes many hours before the assault—continuing to be scrutinised within the courtroom as “evidence” of consent. Burgin and Flynn’s (2021, 335) analysis of court transcripts from Victoria, Australia, for instance, shows that women walking with a man, being friendly, allowing a man to put his arm around her, flirting or giggling, were all raised at trial as evidence of why an accused man believed a woman consented to sex.
Further, as Susan Caringella (2008) has argued, affirmative consent does not overcome many of the inherent problems of rape at trial, including what we know to be rape myths. In particular, it doesn’t solve ideas about what a young woman might consent to, or what a man might expect. She further notes:
A related problem lies in the reasonable person standard in interpreting whether consent is voluntarily affirmatively given. This stipulation does not solve the problems of a “reasonable man” standard. What exactly constitutes “reasonable” is discretionary, as well as derived from a male—not a neutral, let alone female—point of view. (Caringella 2008, 81)
Similarly, there are also considerable problems with interpreting ‘force’ in trials. Scholars including Rachael Burgin (2019) have powerfully shown that narratives of force and resistance continue to dominate court trials, even in jurisdictions with affirmative consent legislation. Despite these problems, many jurisdictions have moved strongly towards affirmative consent.
In recent decades, countries around the globe have enacted, or discussed, reform to sexual violence laws based upon models of affirmative consent. The UK passed amendments in 2003 to the Sexual Offences Act which changed definitions of sexual assault; it is now defined as assault when a person does not consent, and the offender does not reasonably believe that the person consented (2003, s.1–4). The Act’s definition of consent states: ‘a person consents if she agrees by choice, and has the freedom and capacity to make that choice’ (cited in Dowds 2019, 45). The Crown Court Compendium further defines consent: ‘In some situations consent may be given enthusiastically, but in other circumstances it is given with reluctance, but nevertheless it is still consent…when a person is so overcome by fear that he/she lacks any capacity either to give consent or to resist, that person does not consent’ (cited in Dowds 2019, 46).
Other European jurisdictions have incorporated affirmative consent models more explicitly. In 2014, the Council of Europe Convention (Istanbul Convention) held that consent must be given freely. It agreed that non-consensual sexual acts should be criminalised, but left it up to individual states to define and legislate these crimes (Vestergaard 2021, 6). This instrument influenced European countries, such as the Nordic countries, where law reform around affirmative consent has recently been enacted. In Denmark, there was considerable cross-party support for rape law reform that prioritised consent. The Proposal for amending the Penal Code (Consent-based rape provision) of 2020 was passed unanimously, yet how a person might consent has not yet been clearly defined and will be decided by the courts. Sweden passed changes to the Criminal Code in 2018 requiring that the prosecution ‘must prove that the person with whom the sexual act was performed did not participate voluntarily’ (cited in Wegerstad 2021, 739). Since these laws were introduced, rape prosecutions have risen, but the law’s phrasing makes it uncertain as to what behaviour ‘constitutes legally valid expressions of voluntary or nonvoluntary participation’ (Wegerstad 2021, 741). More recently, in 2022, Spain introduced reforms that replaced previous laws requiring elements of force or resistance, after a years-long feminist campaign in response to the ‘Wolf Pack’ trial of 2016 (Faraldo-Cabana 2021). In this case, five men had been charged with the rape of a young woman, but were found not guilty, due to technical wording in the legislation. As the victim had been tricked and coerced into a building with them, rather than being forced into the room with violence, the men were found only guilty of the lesser charge of sexual abuse. The legislation now has an explicit provision of consent; consent must be given freely and demonstrated through actions that express the person’s will.
North American jurisdictions have also included affirmative consent models in their sexual assault laws. In 1992, the Canadian parliament amended the Criminal Code to incorporate affirmative consent provisions by limiting the defence of mistaken consent (Lakeman 2011, 42). This change was followed in common law and by the Supreme Court, in a number of trials and appeals from 1994 onwards which held that ‘not saying “yes” is equivalent to saying “no”’ (Vandervort 2012, 416). Now, consent is defined in the Canadian Criminal Code (1985, s.153) as the ‘voluntary agreement of the complainant to engage in the sexual activity’. Nearby in the United States, reforms have been piece-meal owing to the variation in state-by-state legislation and lack of overarching federal laws. Many states have moved towards affirmative consent, such as New York, Colorado, Illinois, and California. In the latter state, the CA Penal Code (2021, s.216.6) was recently amended in 2021 to define consent as:
…positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act.
California also passed an ‘Affirmative Consent Law’ in 2014 that requires all universities and colleges to implement policies that promote affirmative consent, in order for the colleges to receive state money (Alabi 2019, 81). In contrast, over half of the US states continue to rely on sexual assault laws that do not define consent, and some states such as South Dakota still have archaic rape laws which require ‘force’ or ‘resistance’ (Sandoval 2019, 467).
Meanwhile in the Southern Hemisphere, New Zealand law was amended in 2005 to define ‘sexual violation’ as sexual acts without consent. The Crimes Act (1967, s.128–128A) outlines circumstances where consent cannot be given or assumed, such as consent to some or previous sexual activity. Yet, the defence of ‘reasonable belief in consent’ persists, which has often led to acquittals even where women were intoxicated or resisted (Gavey 2019). Across the pond, Australian states have recently passed reforms after sustained, feminist-led activism on sexual violence. Affirmative consent models were introduced in Tasmania in 2004, and Victoria in 2007, which had ‘the practical effect of requiring consent to be expressed rather than implied, as evidence of a failure to positively do or say anything to communicate consent is enough to establish the absence of consent’ (Finlay and Kirchengast 2020, 65). The Victorian Parliament passed amended legislation in 2022 with expanded definitions of affirmative consent after recommendations from the Victorian Law Reform Commission. The Justice Legislation Amendment (2021, s.6–8) includes provisions that ‘consent involves ongoing and mutual communication’, and an updated defence of belief in consent, which states that a defendant’s belief is not reasonable if they ‘do not say or do anything to find out’ if the other party consented.
In the same year, NSW introduced new laws after recommendations from the NSW Law Reform Commission, which began an inquiry into sexual violence after the advocacy work of victim-survivor Saxon Mullins (NSWLRC 2020, 5). The Crimes Legislation Amendment (2021, s.61HI–s.61HK) defines consent as a ‘free and voluntary’ agreement to sexual activity and also requires that the defendant take actions to determine if the other party consented. In states such as Queensland and Western Australia, Law Reform Commissions have begun investigating sexual violence laws, and the QLD Government announced in late 2022 that it would adopt affirmative consent models, but it is not clear what these reforms will entail WA Government 2023; DJAG Queensland 2022).
Affirmative consent is a profound shift in the ways we understand sexual encounters. It is useful in outlining best practices in sexual relationships, and setting new standards in sexual culture, when both parties are willing and engaged. Further, it gives young people new tools to deal with sexual activities. At best, it focuses on desire and pleasure and supports the bodily autonomy of all parties in a sexual encounter. As one activist wrote to a mainstream audience in an op-ed in the Huffington Post:
“Affirmative consent” is neither a femi-nazi trap nor a presumption of guilt. It is an accurate description of what we do when we are having sex that is not abusive or coerced: We seek confirmation that our partner is a willing participant. (Boyd 2014)
As such, affirmative consent is an excellent starting point for both a positive sexual culture and individual intimate relationships, as the original authors from Antioch intended. Nonetheless, there are a range of limitations to social, cultural, and legal manifestations of sexual consent. The next chapter will begin to explore these, thinking through the ways intimate partners understand and negotiate consent as young people.
