To the Editor:
Judith Shulevitz misstates the affirmative consent standard at issue. No one disputes that “yes means yes” (barring universally agreed upon exceptions, such as the use of force, incapacitation through drugs or alcohol, failure to reach the age of consent). The affirmative consent standard properly stated is that “only yes means yes.” The point is that the absence of “no” does not constitute “yes”; there must be some positive affirmation to confer consent.
We derive no benefit from a discussion of the criminal law’s implementation of the platitude “yes means yes”; that’s already uncontroversially in effect. We need to decide whether the absence of “no” means “yes” (the old implied consent standard—a green light until someone says “stop”), or whether consent must be actively conferred (the newer affirmative consent standard—a red light until someone says “go”).
HARRY BROD
Cedar Falls, Iowa
The writer is a professor of sociology and humanities at the University of Northern Iowa. A DVD of his lecture “Asking for It: The Ethics and Erotics of Sexual Consent” is used by colleges and government agencies.
