Don’t criminalize healthy behaviors

Rape is inexcusable and deserves to be discussed seriously, but the current nationwide push for "yes means yes" laws is likely to cause more harm than good.

In brief, a "yes means yes" law puts into state statutes a legally binding requirement that all parties involved in a sexual encounter demonstrate an "unambiguous, affirmative, and conscious decision" to engage in voluntary sexual relations, to quote California's legislation, which passed last year.

In practice, this means getting verbal consent - an explicit "yes" - at every progressive step in a sexual act.

While this would appear to be a reasonable approach, it is both unreasonable and unworkable.

First, virtually all relationship counselors recognize the importance healthy sexual relations play in building long-term trust, empathy, and identity within relationships. This intimacy is built using a range of verbal, nonverbal, and behavioral actions, often ambiguous by legal definition.

At the core of the "yes means yes" legislation, however, is a presumption that sex is unwanted and destructive. The law thus codifies legalistic rules that work against creating these bonds.

Second, such legislation misses the real problem surrounding sexual assault, particularly date rape and campus assault.

Most rapes and attempted rapes are not committed by perpetrators who would be stopped because the person they're with has not verbalized a "yes."

An estimated 80 percent of sexual assaults are committed by people the victims know. Consent already is a widely recognized legal and cultural standard for determining rape or sexual assault. Virtually all campus codes of conduct explicitly recognize the importance of affirmative consent before sex can be legitimate.

A legal mandate that consent be explicitly indicated through one mechanism - a verbal "yes" - adds little to the effectiveness of these existing codes and laws.

Moreover, "yes means yes" legislation effectively criminalizes millions of actions by individuals and partners that do not lead to rape or sexual assault. Rape and sexual assault still occur at unacceptably high levels, but the solution is not to criminalize normal, healthy behavior.

If our goal is to reduce the incidence of sexual assault, less draconian, more targeted, and more nuanced approaches are available.

One such strategy focuses on influencing community norms. The sexual violence prevention program at Florida State University uses this approach to help students, especially men, better understand the meaning of consent, increase awareness of when a sexual assault may be taking place, and increase the likelihood that somebody will intervene when a sexual assault seems to be taking place.

Other strategies empower men and women by teaching self-defense skills and educating them about environments and activities - excessive drinking, for example - that increase the risk of sexual assault.

This is not victim-blaming. Empowerment strategies recognize the fact that sexual assault and rape are not random occurrences. Helping young adults better understand the types of situations that increase the risk of sexual assault, and giving them the tools to protect themselves, contribute to a safer, more respectful environment for everyone.

"Yes means yes" legislation is misguided. It has the potential to undermine the development of behaviors that build stable, healthy, long-term relationships for the vast majority of men and women.

Efforts to reduce rape and sexual assault should not criminalize healthy sexual behavior. Rather, they should focus on reinforcing and expanding the respect we have for one another, our understanding of intent and consent, and the importance of relationships built on trust and communication in all of its many forms.