Arizona Capitol

"Yes Means Yes" Law Proposed by Some Arizona Lawmakers

Some Democratic Arizona lawmakers have proposed a "yes means yes" policy at the state's universities that would require clear consent for any sexual activity.

A similar proposal was passed into law in California in an effort to combat what's been called a growing problem of sexual assaults on college campuses.

See also: -Barrett, the Honors College at ASU, Is a Close-Knit Community; Some Say Too Close

Arizona's version, House Bill 2474, was proposed by Democratic Representative Juan Mendez, who was not immediately available for comment. (According to an assistant, he was out of the office for Indian Nations and Tribes Legislative Day, as part of his district includes the Salt River Pima-Maricopa Indian Community.)

The bill calls for all public and private universities in the state to have clear policies that "define consent to sexual activity as informed and freely given words or actions that indicate a willingness to participate in mutually agreed on sexual activity."

In California, part of the reasoning behind the law was as a response to news that the U.S. Department of Education's Office for Civil Rights had investigations into 55 schools for possible Title IX (sex discrimination) violations in how they handled particular sexual-assault cases that allegedly occurred on those campuses.

Arizona State University is one of those 55 schools.

It's also been reported that ASU has settled two lawsuits with students who said they were raped on the ASU campus.

The affirmative-consent bill proposed by Mendez would make it clear that things like "silence" and "lack of resistance," among other things, don't count as consent. It also includes provisions that would preclude someone under the influence of alcohol or drugs from being able to give consent, and states that any party in sexual activity can withdraw their consent during that sexual activity.

Four other lawmakers have signed on as co-sponsors to Mendez's bill, all of them Democrats.

The bill has not been scheduled to have any committee hearings, which is the crucial first step in the lawmaking process.

UPDATE 12:41 p.m.: Hans Bader, a senior attorney at the Competitive Enterprise Institute, gave us the perceived "cons" of such legislation:

"Affirmative" consent legislation is misleading, and it effectively redefines some consensual sexual encounters as "sexual assault." It typically misdefines consent as an "agreement," even though lots of things in the real world are not preceded by an "agreement" even though most of us view them as consensual. For example, my wife and daughter hug me without asking for permission or seeking a verbal or non-verbal "agreement."

Requiring an "agreement" before sexual activity can be counterproductive. Do you really want someone to graphically discuss with you whether to touch a particular intimate body part?

California's "affirmative consent" legislation has been described by even supporters as a "state-mandated dirty talk" law, and it could lead to violations of constitutional privacy and equal-protection rights, and freedom from compelled speech, as I have explained elsewhere, such as in this item at CNS News.

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Matthew Hendley
Contact: Matthew Hendley