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

Abstract

The debate over “affirmative consent” suffers from conceptual confusion and unwarranted assumptions. This Article seeks to clarify the concept of affirmative consent and dispel mistaken assumptions. In its most basic form, affirmative consent is a relatively modest reform that has already taken root, either overtly or sub silentio, in many American jurisdictions.

The main difficulty in many contested cases of rape or sexual assault is how to interpret various signals—verbal and nonverbal—sent between the parties to the encounter. The dispute is not over whether a signal was sent at all, and thus, requiring affirmative consent does not assist with or change that difficult task. That is because the problem is not in determining whether some affirmative signal was sent but in determining whether the combination of words and conduct, on balance and in context, indicated agreement to sex. Thus affirmative consent does not offer the significant reform that some of its advocates desire nor present the dire risks many of its opponents fear.

Keywords: consent, affirmative consent, sexual assault