"Yes Means Yes" Sex Standard Too Complex - New York Times

WASHINGTON - Oct. 14, 2015 - PRLog -- WASHINGTON, D.C. (October 14, 2015):  The new "yes means yes" standard, which students are now being taught should be satisfied not only before sexual intercourse, but even before the exchange of s simple kiss, is just too complicated, reports the New York Times.

        Students learning about this new concept find it confusing and unrealistic, says the Times, in part because it doesn't correspond in any way with what they know about real world relationships.

        “What does that mean — you have to say ‘yes’ every 10 minutes?” asked one student.  "Pretty much," replies the instructor, to the now even more confused student.

        The Times also notes that "more young people all over the country are told that they must have explicit permission from the object of their desire before they engage in any touching, kissing, or other sexual activity."  The article also quoted one expert who has written widely on the legalities of the new standard.

    “There’s really no clear standard yet — what we have is a lot of ambiguity on how these standards really work in the court of law,” said John F. Banzhaf, a law professor at George Washington University. “The standard is not logical — nobody really works that way. The problem with teaching this to high school students is that you are only going to sow more confusion. They are getting mixed messages depending where they go afterward.”

        It's also misleading to teach high school students this new standard because it doesn't apply to them at all, and may never apply to them at all, says Banzhaf.

        A female high schooler who dates a student from the same school, or even from a nearby college, may think she is protected by a requirement that he obtain her affirmative consent before having sex.

        But the reality is that the standard does not apply to any of these situations.  Indeed, it only applies to two college students who happen to be attending the same college at the same time, he says.

        The Times also noted, as law professor Banzhaf has written, that several courts have held the new standard illegal and even unconstitutional.

        The new rule can have bizarre consequences, says Banzhaf.  If both students are too drunk to remember what happened when they had sex, is each responsible for sexual assault because he or she can’t prove that the other first provided affirmative consent?

        In an actual case in which Banzhaf consulted, a male student was expelled because he forgot to ask for her consent, even though they had been having sexual intercourse with each other for months.

        However, it turned out that, before penetration, she had performed oral sex upon him, again  assuming permission because it was their long-standing practice.  Is she now liable too, he asks.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf