An irritable FAQ on affirmative consent.

I treat feminist legal scholars, mainstream advocacy organizations like RAINN, and existing/proposed legislation as authoritative.

Q) What is affirmative consent?

A: A legal or ethical standard that makes sex opt-in rather than opt-out.

Q) Is affirmative consent the same as verbal consent?

A: No. Affirmative consent means using best judgement based on words and actions.

Q) Is affirmative consent the same as enthusiastic consent?

A: No. Affirmative consent is a definition for consent; enthusiasm is a nice-to-have quality of some consensual sex. It’s not a requirement, unless you’re demanding that sex workers or couples trying to get pregnant always feel genuine enthusiasm. So far as I know, no one has ever seriously proposed enthusiastic consent as a legal standard.

Q) Does affirmative consent criminalize drunk sex?

A: No. Sex with someone who is so drunk they don’t know what’s going on is already illegal. Sex with someone who is merely drunk enough to make stupid choices is considered consensual in basically all jurisdictions. Affirmative consent has no effect on these rules.

Q) Does affirmative consent criminalize innocent mistakes?

A: No. Rape is a felony that requires “mens rea” – a guilty mind. Prosecutors can’t convict someone without proving that they were either malicious or negligent.

Q) Does affirmative consent shift the burden of proof to the accused?

A: No. Affirmative consent simply changes which facts must be proven beyond reasonable doubt. A prosecutor still must prove beyond a reasonable doubt that the accuser did not affirmatively consent, and that a reasonable person in the accused’s position would have known that.

Q) Could a prosecutor ever realistically prove that?

A: No. Or rather, there will be very few cases where a prosecutor can get a conviction under an affirmative consent standard but not under a narrower standard. This is not a law that will make much difference in a courtroom.

Q) Then isn’t affirmative consent pointless?

A: No. Not all laws are meant for prosecution; some clarify society’s moral convictions. The best way to respect peoples’ bodily autonomy is to make sex opt-in rather than opt-out; that’s how we ordinarily understand “consent” in most social interactions.

Q) Does affirmative consent require me to change anything at all about how I have sex?

A: No. Not if you’re like most people, anyway. Most people already use their best judgement, based on words and actions, to determine whether someone is consenting. In fact, large portions of the United States have had affirmative consent on the books for a while, and barely anyone notices.

Q) You’re making it sound like affirmative consent is no big deal; a minor tweak to existing standards.

A: Yes.

Q) But the internet is full of people who use “affirmative consent” differently than you – who conflate it with verbal consent, who think sex after one glass of wine is rape, and so on.

A: The internet is full of a lot of things.

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