Sexual consent and sexual agency: Professors debate evolving standards at University of Utah

Does yes mean yes? And when does yes mean yes?

Those were the topics Yale Law School professor Jed Rubenfeld and Northwestern University law professor Deborah Tuerkheimer debated Tuesday night for the University of Utah’s 34th annual Jefferson Fordham Debate.

As the idea of sexual consent evolves, some argue that the standard of “no means no” is not adequate. Instead, they contend, affirmative consent — or “yes means yes” — is a better standard to measure consensual sexual activity. Among other arguments in favor of affirmative consent, advocates say it rightly invalidates the idea that silence equals consent.

While many college campuses — including the University of Utah — have begun to rely on affirmative consent in disciplinary standards, it hasn’t been incorporated at large in criminal law.

Rubenfeld and Tuerkheimer attempted on Tuesday to answer the nagging question: Should it?

Both professors began the debate with about 20 minutes to explain their positions. Rubenfeld argued the dissent, while Tuerkheimer took the affirmative.

Tuerkheimer’s argued that moving the standard of affirmative action into criminal law aligns with modern rape law reform efforts, which move from protecting a woman’s chastity to protecting a person’s sexual agency.

“Sex without consent destroys sexual agency. Indeed, sex against one’s will is sexual agency’s opposite,” she said.

Under affirmative consent, when someone gives words or action that indicate his or her willingness to have sex, she argued, an individual has the best chance of asserting and protecting one’s sexual agency.

Rubenfeld, though contending that sexual assault is a problem, said adding the affirmative consent standard to criminal law isn’t the way to fix the issue, and it would result in people who’ve had voluntary sex being prosecuted for sexual assault.

Affirmative consent separates voluntary sex from consensual sex, he said, because sometimes two people voluntarily have sexual relations without receiving express verbal or nonverbal consent.

He gave an example of a person who woke a sleeping partner with a kiss. Is that sexual assault, he asked, because the partner didn’t consent to the sexual contact?

The professors spent the remainder of the evening taking questions from the few dozen people in the audience. They answered questions like: Wouldn’t prosecutorial discretion rule out some of the cases Rubenfeld used as examples of affirmative consent gone awry?

Rubenfeld said that’s not how criminal law for such a serious offense should work.

“This is a very serious kind of offense to talk about and define too broadly,” he said.

Another question was: If two people are equally intoxicated and engage in sexual activity, how do you sort out victim or aggressor?

In that situation, Tuerkheimer said, it seems there wouldn’t be a case — unless a third party provided evidence showing one person was the aggressor. Rubenfeld countered that it was an example of two parties assaulting each other, based on the tenets of affirmative consent.

Though Luis Lopez, a junior at Westminster College who prefers to be identified by the pronouns they and them, came into the debate believing affirmative consent should be the standard for sexual contact — and the debate didn’t change their mind — they said they did get something out of it.

“Whether you agree with affirmative consent or not, I think one of the takeaways is that it’s hard to reform laws and it’s hard to talk about what people want and how to implement that in laws,” they said.

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