The 'Yes' in 'Yes Means Yes'

To grant permission for intimate, physical, acts, consent should be unambiguous. However, our sexual scripts – how we conventionally express our consent – are often subtle, unspoken, and rely on implicature. When it comes to the criminal law, the criminal defendant can seize upon any ambiguity and use it to explain their mistaken belief in the consent of the complainant.

Sweden’s response to the exculpatory effect of ambiguity was to reform the meaning of consent. To require that ‘yes (and only yes) means yes’. Finland, Spain, Denmark soon followed. Rather than defining consent in terms of the complaint’s attitude of willingness, acceptance, or acquiescence (‘attitudinal’ consent), the ‘yes means yes’ standard defines consent in the words or overt actions of a person that indicate an attitude of willingness (‘expressive’ consent).

In Sex and Self-Ownership, I endorse this law reform. But I also force the new standard – ‘expressive consent’ - into a dilemma. I do so to then clarify how it ought to be interpreted and applied. In this discussion I am going to focus on ‘the expressive consent dilemma’ (and then gesture at a way out of it).

The problem with the expressive standard of consent is that it either collapses back into the attitudinal standard or carves out a culpability gap. Regardless of how we try to delineate the expressive consent standard — as requiring ‘objective’, ‘reasonable’, or ‘public’ consent — we confront the choice of either following social practices or prescribing them. This creates a dilemma. At one horn, if the expressive standard of consent follows social practices, then it amounts to little more than attitudinal consent. At the other horn, if the expressive consent standard instead prescribes a practice, then it convicts defendants whose blameworthiness stems merely from their ignorance of the prescribed practice.

Let us start by considering what, if anything, separates attitudinal and expressive consent. If we were to apply the expressive consent standard, we would encounter some easy cases, such as:

(1) No communication: A wakes B, and then proceeds to have sex with B, where B indicates neither her acceptance or willingness nor her objection or refusal (where A and B had no prior sexual interaction).

Here, B did not consent to sex with A, on the basis that B did not express her willingness or acceptance through words or overt actions. Applying the same standard, B did consent to sex with A in a scenario where:

(2) Verbal acceptance: A has sex with B after A propositions B by suggesting ‘Let’s fuck’, and B replies, ‘Okay’.

This is because B did express her attitude of acceptance through express words. And in (3) Verbal rejection, B expressed her objection, where:

(3) Verbal rejection: A has sex with B after B verbally objects to the sex: ‘No, don’t’.

Under the expressive standard, hard cases will remain. For instance, where:

(4) Enthusiastic undressing: A has sex with B after A and B both kiss and then enthusiastically undress themselves at different ends of a hotel bed.

Unlike in (2), no words were used to express consent. And it is not obvious whether B’s own ‘enthusiastic undressing’ in (4) is an overt enough act to be indicative of the willingness to have sex with A. There is more uncertainty in a similar scenario, where:

(5) Enthusiastic kissing: A has sex with B after A and B both enthusiastically kiss, and A undresses B, in the bedroom at a house party.

It is not clear whether B’s enthusiastic kissing in (5) is, itself, sufficient to express or communicate a willingness to have sex with A at a house party. Our intuition is most likely that it doesn’t. Or, at least, it shouldn’t. But therein lies an important but subtle distinction.

Under the attitudinal standard, we would encounter the same pattern: in (1), the passive behaviour of B provided no basis upon which A could have inferred an internal attitude of willingness; in (2) B’s active communicative behaviour can provide a sufficient basis for A to infer that B had an attitude of acceptance; and in (3) B’s express verbal rejection removed any basis upon which A could infer a consenting attitude. In all these easy cases, it is A’s inference from B’s behaviour to B’s attitude that is doing the work. There will also be hard cases under the attitudinal standard. Whether A could infer an attitude of willingness or acceptance from (5) B’s enthusiastic kissing (alone) or (4) B’s kissing and enthusiastic and unaided undressing is open-ended in the same way that it was under the expressive standard.

In all scenarios, any distinction between the attitudinal and expressive standards has vanished already. Under both standards, we infer from objective behaviour to a subjective attitude. The difference between where we locate the definition of consent — on the objective behaviour or on the subjective attitude — seems to be immaterial to the practice of assessing a defendant’s inference from a person’s behaviour to that person’s attitude.

This might miss the point of expressive consent. The point of the law reform is to require more than a mere inference; it requires the instigator of sex to act on at least a reasonable inference to a consenting attitude. However, in applying a standard of reasonable inferences, there is nonetheless a choice for the finder of fact (the judge or jury). The finder of fact might understand her role to consider how an ordinary person might behave in sexual matters. By masquerading as the ordinary person on the street, the distinction between the attitudinal and expressive standard once again collapses. The standard returns to the open-ended question whether an ordinary person could have inferred from the behaviour of another person to a consenting attitude.

Alternatively, the finder of fact might assess the inference with regards to the proper standard for a justified belief, and in doing so, prescribe how one ought to behave in sexual matters. If the expressive standard were to require an appropriate inference from behaviour to attitude, then it would resist the collapse into the attitudinal standard. No ordinary (reasonable person on the street) inferences will do; only appropriate ones. But, by doing so, the expressive consent standard risks prescribing a sexual script (for how one ought to behave in sexual matters). Those who fail to follow the script — for instance, for those who reply on non-verbal cues— may be acting carelessly or heedlessly, whilst engaging in a morally risky activity. We should be critical of people who engage in careless or heedless sex. The question is, however, is whether the failure to adhere to the prescribed script is a culpable failure so as to engage the criminal law.

The problem is that traditional legal standards require a blameworthy state of mind to be coupled with wrongful behaviour. Punishment is ordinarily reserved for those who were of aware of the moral reasons they were acting contrary to. In effect, the ‘appropriate inferences’ approach to the expressive standard removes the requirement that the defendant knew, or appreciated a real and substantial risk, that the complainant was not consenting. In its place, a serious crime can be committed when the defendant merely failed to follow the state’s prescribed sexual script. In this way, we can identify a significant culpability gap between the blameworthiness of the ignorant defendant, who is unaware of the required sexual script and relevant inference-forming rules, and the archetypal defendant, who knowingly or recklessly imposes sex. The culpability gap suggests, at the very least, that the ignorant defendant and the archetypal defendant do not belong in the same legal category. Arguably, conduct of the ignorant defendant – whose blameworthiness stems only from a failure to follow a prescribed sexual script – should not concern the criminal law.

Still, maybe that is missing the point. The point of expressive consent is to require the defendant to evidence their mistaken belief in consent with reference to the public and observable conduct of the complainant, and not merely their own subjective beliefs and inferences. If consent must operate in a public space to assert normative power — to be rights-waiving or permission-granting — then the expressive consent standard is best understood as an attempt to locate consent in that public space.

Words and overt actions are ‘public’ in a trivial sense; they are uttered and performed in an objectively observable space. But for consent to assert normative power, it is the meaning that the words or actions convey that must be shared or public phenomenon. Hence, when we try to ‘locate consent’ we are trying to locate meaning, not in the speaker’s private intention, nor the hearer’s private understanding, but in the ‘public’ space that exists between them. If a shared understanding is necessary for the normative act of rights-waiver, then it would seem to follow that consent must be a form of communication that takes place in this public space.

For example, in (2) Verbal acceptance, A’s proposition to B — ‘Let’s fuck’ — would appear to be ‘public’ communication. As is B’s reply, ‘Okay’. A’s attitude of willingness is out in the open, and B openly reciprocates the attitude. Even then, the meaning of the proposition ‘Let’s fuck’ relies upon a network of intentions and recognition of intentions. For A to communicate to B, A needs to intend the propositional content (I want to have sex with you) through the utterance (‘Let’s fuck’), A needs B to both recognise that A is intending the propositional content, and further recognise that B is intended by A to recognise the intentional propositional content.

Note that we have reverted into the language of intention and recognition. Hence, at first blush, we might think that our understanding of communication is still stuck in the private headspace of B inferring about the private headspace of A. Except what links an utterance with propositional content — what gives it ‘illocutionary force’ — are shared communicative conventions. These shared conventions are public in the sense that, once they are conventional, they are social facts that exist independently of individual speaker. In this way, communicative conventions are public conventions, ungoverned by the private headspace of A or of B.

So far, so good, for our distinction between the ‘private’ attitude of willingness (the attitudinal standard of consent) and the ‘public’ words or overt actions (the expressive standard of consent). For consent to change the normative situation, the communication of an attitude of willingness needs to be made through engagement with public communicative conventions. Utterances (‘Let’s fuck’) are public expressions of a willing attitude insofar as the intended and recognised propositional content has illocutionary force by virtue of communicative conventions that both the speaker and hearer are familiar with.

The conventional aspect of communicative conventions should, now, make us nervous. Recall the dilemma behind ‘reasonable’ inferences; the standard of consent is either descriptive of a sexual script or prescriptive of one. Being descriptive collapses the distinction (between expressive and attitudinal consent) and being prescriptive creates a culpability gap (and a criminalisation problem). We can now see the same dilemma re-emerge. There are public elements to communication. Utterances, speech acts, and overt body language, take place in the space observable by two people. The conventional practices that secure the meaning of a speech act also float free of the particular’ speaker’s intention or hearer’s recognition. As ‘public’ as communication might be, we nonetheless arrive at the same choice as before: the public elements of the consent standard can either describe the communicative conventions that are practised, or prescribe the communicative conventions that ought to be practised. Description leads to the collapse of the distinction between attitudinal and expressive consent, and prescription leads to the culpability gap.

However, dilemmas are built on dichotomies, and some dichotomies are false. The mistake so far has been holding the inference (from behaviour to attitude) to either a descriptive social practice or a prescribed one. The standard of inference could, however, be held to an epistemic standard. For a mistake to be exculpatory, the mistaken person needs to be epistemically justified in their belief that the action was a permitted action. Avoiding the expressive consent dilemma then turns on understanding how a person might be epistemically justified in their mistaken belief. I discuss in my recent book how this requires the expressive consent standard to be interpreted to require – as a matter of evidence – that an exculpatory mistaken belief is to be determined solely by having regard to the steps (if any) A has taken to ascertain whether B consents. Without this rule of evidence, the expressive consent law reform is a hollow victory.

Jesse Wall is an Associate Professor of Law at the Faculty of Law, University of Auckland. He is interested in Private Law theory and Criminal Law theory, as well as the questions of methodology that arise in legal theory and general jurisprudence.

Disclaimer: Any views or opinions expressed on The Public Ethics Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.