As reported in America’s Sept. 29th Current Comment “Protecting Human Dignity,” California Governor Jerry Brown has signed into law the country’s first “affirmative consent” bill, mandating that sexual partners on state college campuses must give “affirmative, conscious and voluntary agreement” for sexual activity to be considered legal. That is to say, neither silence nor a lack of resistance can any longer be construed as implying consent; nor can young people who are drunk, high, asleep or unconscious be considered as having given their consent for sexual activity.
Critics have attacked the law for its intrusiveness into matters of the bedroom—a place the state rarely makes out well, no matter its intentions. And its insistence that both partners give consent does not mean that such consent will now be any easier to prove. He said/she said, unfortunately, remains in play.
But an interesting side effect of the new law is the conversation it is almost sure to provoke among and within young people about sex itself. In Western culture today, sexual activity is most often presented as a form of self-gratification, little more than a kind of masturbation involving someone else.
The Catholic Church has long challenged this view, insisting that sexual intimacy demands mutuality. So the Pontifical Council for the Family in its 1995 document “The Truth and Meaning of Human Sexuality” tellingly describes sex as “a way of relating and being open to others.” Its intrinsic end, says the Council, is love— “love as donation and acceptance, love as giving and receiving.”
Likewise in her 2006 book Just Love, theologian Margaret Farley insists that at the heart of sexual expression lies justice, a respect and concern for one’s partner.
It’s the great paradox: we often perceive sex as the fullest expression of ourselves. And yet, in truth that self-realization is not achieved by "gettin' some," but through our generosity.
Though operating out of a wholly secular framework, California’s new law calls young people to a similar point of view. We're used to seeing consent as “a light switch,” on or off, writes Jaclyn Friedman, co-editor of Yes Means Yes: Visions of Sexual Power and a World Without Rape. But consent is actually the context for the whole of sexual experience. “Consent isn’t a question,” she writes, “It’s a state. If, instead of lovers, the two of you were synchronized swimmers, consent would be the water. It’s not enough to jump in, get wet and climb out — if you want to swim, you have to be in the water continually. And if you want to have sex, you have to be continually in a state of enthusiastic consent with your partner.” Sexual activity not only begins, but builds, climaxes and ends with both partners’ ongoing “yes.” As Molly Bloom says at the astonishing ending of James Joyce's Ulysses, "Yes I said yes I will Yes."
Could it be that a state law (signed into law by a former Jesuit no less) could get teenagers reading the Catechism and holding "I'm Saving Myself" rallies? Stay tuned. Insofar as it protects the vulnerable and demands young people stop to consider the needs of the person in front of them, it is certainly a very positive step.