The debate concerning affirmative consent consists of two camps: those who assert people must affirmatively establish a desire to engage in sexual contact and those who believe this is an unattainable standard. However, this is not where the debate should start and end. This paper argues that the movement towards affirmative consent in sexual contact will reduce the occurrence of sexual assault. Criminal law sets the backdrop for this paper, but the author recognizes the limits of criminal law. In order to combat sexual assault, there must be a multidisciplinary response. By providing a comprehensive definition of affirmative consent and examining the social harm of sexual assault that the criminal law seeks to rectify, the author will establish that the creation of an affirmative consent culture, rather than simply an affirmative consent law, will enhance protections for women. Affirmative consent means more than “yes means yes.” This paper responds to the many critiques of the affirmative consent model including that it will not eliminate sexual assault, that this standard criminalizes sex, and that it shifts the burden to a defendant. Rather, the author proposes a three pronged approach to affirmative consent which mirrors that of the anti-drunk driving methodology of the 20th Century: education, social stigma, and criminal law adjustments.
Mary Graw Leary, Affirmatively Replacing Rape Culture with Consent Culture, 49 Tex. Tech L. Rev. 1 (2016).