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The Affirmative “Yes”. Sexual Offense Based on Consent
Ana Vidu & Gema Tomás Martínez1
1) Universidad de Deusto, Spain
Date of publication: February 21st, 2019
Edition period: February 2019 - June 2019
To cite this article: Vidu, A., & Tomás Martínez, G. (2019). The Affirmative
“Yes”. Sexual Offense Based on Consent. Masculinities and Social Change,
8(1), 91-112. doi: 10.17583/MCS.2019.3739
To link this article: http://doi.org/10.17583/MCS.2019.3739
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MCS – Masculinities and Social Change Vol. 8 No. 1 February 2019
pp. 91-112
2019 Hipatia Press
ISSN: 2014-3605
DOI: 10.17583/MCS.2019.3739
The Affirmative “Yes”. Sexual
Offense Based on Consent
Ana Vidu Gema Tomás Martínez
Universidad de Deusto Universidad de Deusto
Abstract
The gang rape case that occurred in Spain during a 2016 famous festival placed the
trial against its five aggressors on an unprecedented media and social scale in Spain.
The court that ruled for sexual abuse and not for rape sparked a huge and prompt
social rejection of the current legislation. To overcome revictimization and give
voice to survivors, the consideration of consent has been raised. This new paradigm
has deeply spread in society and social networks to the point that the Spanish
government has expressed its interest in modifying the Criminal Code to base sexual
crimes on consent. In our duty to provide scientific knowledge for this issue, this
article frames the debate on sexual harassment and focuses on the crime against
sexual freedom and the context under which consent can neither be asked for nor
conceived. This article analyzes the aggravating crime factors while basing consent
on the intention of the offender. Starting from international approaches, this article
emphasizes the current social opportunity needed to create awareness and transform
laws with the aim of legislating on affirmative “yes”. This approach contributes to
the challenge of overcoming gender violence and to the study of masculinities and
their influence on social transformation.
Keywords: sexual consent, sexual harassment, affirmative consent, social
mobilization.
MCS – Masculinities and Social Change Vol. 8 No. 1 February 2019
pp. 91-112
2019 Hipatia Press
ISSN: 2014-3605
DOI: : 10.17583/MCS.2019.3739
El “Sí” Afirmativo. Delito Sexual
Basado en el Consentimiento
Ana Vidu Gema Tomás Martínez
Universidad de Deusto Universidad de Deusto
Resumen
El caso de violación colectiva que se produjo en España durante un famoso festival
de 2016 colocó el juicio contra sus cinco agresores en un nivel mediático y sin
precedentes en España. La sentencia del tribunal por abuso sexual y no por violación
provocó un rechazo social enorme y rápido hacia la legislación actual. Para superar
la revictimización y dar voz a los y las sobrevivientes, se ha planteado la
consideración del consentimiento. Este nuevo paradigma se está extendiendo
profundamente en la sociedad y las redes sociales hasta el punto de que el Gobierno
español ha expresado su interés en modificar el Código Penal para basar los delitos
sexuales en el consentimiento. En nuestro deber de proporcionar conocimiento
científico sobre este tema, este artículo enmarca el debate sobre el acoso sexual y se
centra en el delito contra la libertad sexual y el contexto bajo el cual el
consentimiento no puede pedirse ni acordarse. Este artículo analiza los factores
delictivos agravantes mientras basa el consentimiento en la intención del
delincuente. Partiendo de enfoques internacionales, este artículo enfatiza la
oportunidad social actual necesaria para crear conciencia y transformar leyes con el
objetivo de legislar en un "sí" afirmativo. Este enfoque contribuye al desafío de
superar la violencia de género y al estudio de las masculinidades y su influencia en
la transformación social.
Palabras clave: consentimiento sexual, acoso sexual, consentimiento afirmativo,
movilización social.
MCS – Masculinities and Social Change, 8(1) 93
wo years ago, the Spanish population participated in the most
controversial trial for a rape case. The situation occurred in
2016 during the celebration of Pamplona’s regional festival
called San Fermín. Everybody was waiting for the judicial
sentence, and finally, the five aggressors were condemned for sexual abuse
and not for rape. The issue to discuss is consent. During the sexual
aggression, the 18-year-old victim did not say “no” at any moment. Her fear
of being killed prevented her from negating the facts. On the same day of
the judicial decision, six hours after the sentence went public, thousands of
people demonstrated in the street all across the country in favor of the
survivor (The Guardian, 2018)1. Society took her side, we believed her, and
citizens mostly defended her right to not show negation; we even
understood her fear of being killed in case she dared to say “no”. In Spain,
we all remember Nagore2, a 20-year-old woman who was killed during the
same festival in 2008. Nagore acquiesced in being with a man, even going
to his apartment. However, she said “no” to have sex with him and was
killed.
The judicial decision against the so-called "wolf pack"3 was so famous
and so socially rejected that it advanced the debate regarding the Spanish
Criminal Code and its definitions of the terms harassment, abuse and rape,
which caused almost everyone to criticize the decision in an unpreceded
manner in Spain. The Spanish Criminal Code defines in article 181 sexual
abuse that a person commits this crime if, "who without violence or
intimidation and without consent, [they] perform acts that attempt against
the freedom or sexual indemnity of another person, will be punished, as
responsible for sexual abuse"4. Considering the age of sexual consent in
Spain, 16 years, this crime would be considered in this case for individuals
below this age.
Within the Crimes against sexual freedom and indemnity, the Spanish
Criminal Code also defines sexual harassment in article 1845
as one requesting favors of a sexual nature, for himself or for a
third party, within the scope of an employment, teaching or service
provision, continued or habitual, and with such behavior [that] will
provoke [in] the victim an objective and seriously intimidating
situation, hostile or humiliating.
T
94 Vidu & Tomás Martínez – The Affirmative “Yes”
Sexual assault is defined in article 178 as "one that attempts against the
sexual freedom of another person, with violence or intimidation". The
following article 179 further specifies that "when the sexual assault consists
of sexual intercourse by vaginal, anal or oral route, or introduction of
objects by one of the first two routes, the person responsible will be
punished as a criminal of rape". Following such definitions, rape is shaped
under the presumption of aggression.
Currently, the revision of the Spanish Criminal Code constitutes an
important task for the Spanish government. Citizens’ mobilization has very
recently pressed the government to have the figure of a Vice President, the
person in charge of equality affairs, to show up publicly to affirm that the
new reform of the current Criminal Code will reframe sexual offense to
include consent as the main pillar. Specifically, the lack of an explicit "yes"
from the victim side will be considered a sexual crime. Legislative
definitions manifest the age of consent in relation to the age of getting
married. Rather than considering age or other determinants, in this article,
we discuss the context in which sexual engagement occurs. In terms of
dialogue and communicative acts to obtain agreements, the social sciences
agree somewhat in defining context as the place where social interactions
are manifested (Searle & Soler, 2004). Communications among people are
influenced by context and the social determinants surrounding it, such as
power and privilege.
The debate on sexual harassment turns on sexual consent and the
conditions under which consent should be considered or behavior should be
punished (Pérez Hernández, 2016). Citizens have already shown their
rejection to the current legal aspects that address gender violence and
harassment. Social mobilizations are increasing and legislators are now
taking over the issue, which turns the current moment into a historic stage
for gender violence and overcoming it. The problem is revealed, but many
questions are still unanswered. Scholars have to provide knowledge about
this reality and fill the gap of framing consent and the conditions under
which it can or cannot be asked or conceived. Society, judges, policy
makers, women and men need to know what sexual consent is, when
consent is given, what the conditions are that imply consent, and how often
we must reaffirm the consent. Above all, everyone must know what is not
considered consent in any sexual engagement.
MCS – Masculinities and Social Change, 8(1) 95
State of the Art
Policies and legislation are essential to make progress and to press social
movements further and more broadly. For example, António Guterres,
Secretary General of the United Nations, began a speech this way:
Let us declare in one voice: We will not tolerate anyone
committing or condoning sexual exploitation and abuse. We will
not let anyone cover up these crimes with the UN flag. [...] Let us
make zero tolerance a reality.6
The reality of sexual harassment has been a struggle for decades. For
Marx (1867: 2008), violence was instrumental power; for Weber (2012:
1904), violence was a way of legitimate coercion; and for Merton (1965),
violence was an outcome of inequality. However, violence and gender-
based violence have become visible in recent times and in multiple spaces
(Abraham, 2015; Connell, 1987; Beck-Gernhein, Butler & Puigvert, 2001).
The debate appears over the public spectrum. In current times, the #MeToo7
and #TimesUp8 campaigns have placed the problem on the social and
political radar (Neill, 2017). Social networks spread the word and
mobilizations have become global all across the world. Indeed, the fact that
very famous women became involved by recognizing that they have
suffered from violence similar to any other woman has highly contributed
to the success of this movement.
Consent in sexual affective relationships was first discussed in academic
contexts, and college campuses led the struggle of considering consent in
any sexual affective relationships. The academic context has some relevant
features, such as power relationships that blur the line between consent and
sexual harassment. Women’s studies were introduced in universities across
the United States and the United Kingdom at the same historical moment
through the Women’s Liberation Movement (Bird, 2002). Social
movements have also played an important role in the configuration of legal
definitions on rape and sexual violence. According to the research of
Freedman (2013) on the importance of social movements to historical
change, several social mobilizations have contributed to extend the
definition of rape and sexual violence. The American Act embraced in its
status the original definition of rape that came from British Law as “the
96 Vidu & Tomás Martínez – The Affirmative “Yes”
carnal knowledge of a woman when achieved by force and against her will
by a man other than her husband” (Freedman, 2013, p. 4). In redefining
rape, the author acknowledges rape as being an issue of power and
privilege. Framing the frontiers of citizenship, she emphasizes women’s
changing values in society against unfair situations with unprivileged
communities. By describing the racial segregation period and women’s
suffrage, Freedman emphasizes the importance of women’s rights
advocates who struggle for expanding awareness of gaining legal protection
for sexual abuse and assault, coercive sexual relations and any type of
harassment, including the sexual abuse of children. Current feminist
movements still grapple with the victories and limitations of the first reform
efforts to keep redefining rape and sexual abuse within every law and
culture.
Social movements were also demanding the raising of the age of sexual
consent and the recognition of marital rape. To overcome gender violence,
the line between consent and sexual harassment must be very clear for any
sexual engagement in any context. When social interaction situations
involve power relations, sexual harassment behavior tends to be easily
identified, according to the research of Bursik and Gefter (2011) that
involved students. To better address sexual harassment in any environment,
social context and the consideration of power must be considered to frame
the relationships that are pretended to improve them. Other researchers
struggled to change US legislation (McMahon, 2008; Cantalupo, 2012)
rather than advance it so that victims of gender violence received attention
and response. In this research, they argued for further definitions of sexual
assault that consider consent in a verbal and behavioral way. Within the
field of higher education, the definition of gender violence already
recognizes consent. Gender violence includes verbal violence such as sexist
and humiliating remarks, undue or unwanted attention, inappropriate and
offensive sexual advances such as kisses and caresses without consent,
intimidation and leering, and bribery and physical violence including
abusive and intrusive behavior (Schubert, 2015; Benson & Thomson,
1982).
Sexual harassment exists and is increasingly in the public eye. It subsists
in universities (Valls et al., 2017), political parties (Mellins et al., 2017), the
media, and in all social spaces (WHO, 2017). The latest study of the
MCS – Masculinities and Social Change, 8(1) 97
Academy of Sciences shows this reality in scientific areas of knowledge
(The National Academies of Sciences, Engineering, Medicine, 2018).
According to a survey conducted by the USA TV channel CNBC (2017),
27% of women and 10% of men reported having experienced sexual
harassment in the workplace. Recently, a World Bank internal survey on
sexual harassment in the workplace, which was made public, indicated that
1 in 4 women suffer harassment at the World Bank9. Although all of these
data suggest a problem of a stratospheric magnitude, they also show a path
to make possible the issue becoming known so that it can be addressed
from all the required perspectives. Answering affirmatively to a poll, 25%
of women and 4% of men in all of these abovementioned contexts knew of
and suggested that they had suffered from harassment. However, they did
not say “no” at any moment, but still, they never consented. These type of
scenarios are going to be addressed in this article. Student networks such as
End Rape on Campus10 and the Solidarity Network of victims of gender-
based violence in universities (Puigvert et al., 2017) have always given
priority to victims’ voices. The inclusion of consent in the approach to
sexual harassment is a very powerful way to give voice to victims and be on
their side rather than supporting harassers or justifying their behavior under
the idea of innocence prejudice.
There may also be a potential indirect decrease in harassment, since the
empowerment of victims is removing impunity from harassers. Institutions
are acting, and currently, it is not so easy to look the other way. Society is
carefully watching. The complaints in the case of the biologist at the
University of California, Irvine made the institution even change the name
of its library, which had until that day the name of the accused biologist.11
Coherence has greatly contributed to science and is necessary in the current
academic world. Taking a position against harassers constitutes an act of
solidarity with potential victims who may have abandoned their careers
because of an uncomfortable environment in their workplace.
As far as the scientific literature shows, the first context in which the
subject of consent was addressed was at North American university
campuses (Benson & Thomson, 1979). The first struggle of the student
movement began in the late 1970s in California. This movement achieved
unprecedented goals, such as the approval of several policies of prevention
and action against sexual harassment and breaking the silence about sexual
98 Vidu & Tomás Martínez – The Affirmative “Yes”
violence in universities and the power complicities that maintained it. The
first complaints against harassing professors began to occur then, and little
by little, victims found support to complain. In the 2000s, and the new
millennium, a new wave of students were asking their universities to take
charge of harassment and rape cases not only at offices, classrooms and
halls but also at university parties, fraternities and sororities (Armstrong &
Hamilton, 2013).
In 2004, the No means No legislation12 was passed to clarify consent to
sexual activity. The definition states as follows: "An affirmative consent
standard in the determination of whether consent was given by both parties
to sexual activity. “Affirmative consent” means affirmative, conscious, and
voluntary agreement to engage in sexual activity". It is understood that, if
anyone says "no" during any type of sexual engagement, the other person
involved must understand the "no" as “no”. A person must above all
understand that if he/she does not pay attention to this denial, he/she is
committing a sexual crime, a sexual contact with a person who has not
given her/his consent. The California State Bill SB-967 also expresses that
It is the responsibility of each person involved in the sexual activity
to ensure that he or she has the affirmative consent of the other or
others to engage in the sexual activity. Lack of protest or resistance
does not mean consent, nor does silence mean consent.
¿How Hard is to Say “No”? Legislation Considering “Consent” for
Sexual Engagement
The era of transformation follows. There is actually no need to say “no” to
make other people understand that there is no consent for a specific act.
Legislation is necessary, it provides freedom, but legislation must also
change. Years ago, people and students verified that considering the “no
means no” legislation had a great impact in breaking the silence and
advancing the struggle against sexual violence in academia. Soon, they also
became aware that in reality, consent means saying “no” is insufficient,
simply because victims cannot always say "no" (Muehlenhard, Humphreys,
Jozkowski, & Peterson, 2016). States of unconsciousness, alcohol and
drugs make a person unable to consent. In addition, fear, intimidation,
MCS – Masculinities and Social Change, 8(1) 99
power relations, academic evaluations, among other reasons, are situations
that restrict the "no" of a victim or even nullify it.
The Campus Sexual Violence Elimination (SaVE13) Act was signed in
2013 by President Obama as part of the Violence Against Women Act
(VAWA) Reauthorization. This federal law followed the approval of the No
Means No Act, which was added to the Criminal Sexual Assault Act in
2003 and established “consent” as a prerequisite to any sexual activity.
Consent must be affirmative and positive, according to the law. In the
context of student activism and social mobilization, students pushed for the
“Yes Means Yes” consent law for college campuses. In 2014, the student
group Our Harvard can do Better14 argued that only "yes” means “yes" and
claimed the “Yes means yes” law, which was passed the same year in the
state of California and was passed a year later, in 2015, in the state of New
York under the name “Enough is enough”15. According to Fox-Penner,
Fournier, Mayopoulos & Goffard (2014) in their definition of affirmative
consent on campus, which was published in September 2014 by the
Harvard Political Review, they defied affirmative consent as follows:
“Affirmative consent is not a conspiracy to persecute innocent students or
mandate a single script for sexual activity. Affirmative consent is crucial to
separate sex from devastating forms of violence and to make Harvard a safe
community for everyone."
Thus far, in the United States, only two states have affirmative consent
standards, namely, in California, "Yes Means Yes", and in New York,
"Enough is Enough"; these laws apply to universities. The United States has
nine16 universities with affirmative consent policies. Bringing these policies
into the social sphere also implies thinking about which person and in what
way he/she is responsible for the implementation of consent. “Yes means
yes” is also called the Affirmative Consent Law because it defines consent
as being based on an affirmative, conscious and voluntary agreement to any
sexual contact. The law indicates that consent is required and requires
institutions to take responsibility and implement affirmative consent
policies. Although the first laws in favor of consent have begun to flourish
on university campuses, sexual violence is still a reality that affects other
spaces.
In the above legislation, consent is defined as affirmative, conscious and
voluntary. None of these words is obvious and they should not be taken for
100 Vidu & Tomás Martínez – The Affirmative “Yes”
granted. All of them have a meaning full of content. The word “voluntary”
leads us to defend sexual freedom without any external pressure. A victim
cannot always manifest an express “no”; often his/her professional
inferiority situation prevents this, such as a relationship of power (where
one person has a higher job position than the other person in the
relationship). Our current concern is to take the issue of consent further and
apply it to all areas of society.
Some European countries have taken the lead on integrating consent into
their policies. Germany changed its law on sexual assault and rape in 2006
(Hörnle, 2016). The change consisted of section 179 of the German
Criminal Code that in considering the crime of sexual offense,
would eliminate the requirement of coercion by force or threat of
use of force and would criminalize situations in which the victim
does not suspect an attack, is defenseless, or makes a refusal to
consent to the sexual act known either verbally or through his or
her behavior (e.g., by crying or stiffening).17
In this way, the German model stiffens the penalties for offenses that are
not based on consent and states that a physical or mental condition could
prevent consent.
Belgium’s law considers that the crime for sexual offense consists of
any act of sexual penetration committed on a person who does not
consent. Consent is deemed to be absent when the act is imposed
by means of violence, force or by a trick, or if the victim is
suffering from a physical or mental disability.
This is the definition of rape according to article 375 of the Belgian
Criminal Code (passed in 1989).18 In this way, the Belgian Criminal Code
defines rape as all acts of sexual penetration in any circumstance and in any
way towards a person that are against her/his consent. In this case, consent
is not given when there is coercion, deception and violence.
UK law also considers informed consent, which must be given freely, by
both partners, enthusiastically, every time and for every sexual act.19
MCS – Masculinities and Social Change, 8(1) 101
“An intoxicated person is legally unable to consent to sex and
having sex with a person who is very drunk is rape or sexual
assault”. The UK law also adds that “consent cannot be given if
either partner is under the age of 16 – which includes vaginal, anal
and oral sex”.
The crime is committed by the person who does not ask for consent or
who does not respect it. In the same way, consent must be free and under
the full capacity of the person who gives it.
In the case of Sweden, legislation that includes consent was recently
passed in July 2018.20 This legislation specifies that the requirement of
consent is the basis of the new legislation, regardless of whether there has
been violence or threats or whether a person has violated the vulnerability
of the victim. A novel element of the Swedish law is the concept of
negligent rape and negligent sexual abuse, which broadens the situations
that are considered abuse. For instance, a person must be aware of when the
other person does not participate voluntarily but is still performing sexual
acts with that person.
Consent and Sexual Freedom
From the sexual freedom perspective, consent in sexual acts is also the most
controversial issue. Criminal sexual assault acts need to assure that the
parties involved truly wanted to be part of the sexual activity. Thus, a “no”
by one of the people involved means a lack of consent, and the other person
must fully understand and respect the right to say “no”. Consistent with
seeking an express “yes” and legislating it, experts in the field of law, such
as Professor Adela Asúa21, affirm how important is to configure a single
crime of sexual assault whose axis is consent. We completely agree with
her idea, since we are worried about the attacks against the honesty of
women. Since 1989, crimes related to sexual violence in Spain have been
called "crimes against sexual freedom"; this is the point we aim to reach.
Besides the judicial issue concerning penalty and placing an aggressor in
jail, our duty is also to analyze reality to improve it. Therefore, to contribute
to overcoming gender-based violence and protecting women and men, their
sexual actions must be based on freedom.
102 Vidu & Tomás Martínez – The Affirmative “Yes”
This article seeks not only to deepen the simple categorization of
consent within the Criminal Code but also to evidence a more individual
reality. The Spanish government intends to change its Criminal Code,
which is indeed great progress. However, social relevance demands that the
debate should be taken beyond issues such as the number of years in prison,
according to any crime typology. Our aim places the discussion beyond the
crime committed, it includes the acts committed. It is not our intention that
the subject be articulated according to the years of imprisonment rather to
determine the behavior and the repercussions it may involve for survivors.
Sex crime narratives claim that there is lack of consent and lack of
consideration of victims’ feelings in legislation. According to Ventura’s
research, victims’ feelings are not contemplated by law. Criminal laws do
not consider feelings because they are not facts (Ventura, 2017). However,
sexual violence has serious consequences for victims and for society.
Several studies target teens and boys in pursuing gender equality (Foley
et al., 2015) and manifest the importance of programs and preventive
protocols for their training in pursuing consensual sexual relations. The
study of alternative and egalitarian masculinities are influencing sexual
affective relationships to achieve a deep and crucial transformation of
society and social roles (Rios-Gonzalez et al., 2018). Scholars such as
Connell (2012) aim to configure a powerless masculinity. She claims that
power has been an important issue in understanding masculinities, but she
advocates for power roles and hegemonic masculinities that are not equated
with violence. On the global scale, power structures and incoherence in
gender relations still exist; nevertheless, the politics of gendered institutions
are being elaborated in terms of equality and change. This article persists on
raising global awareness about this crucial changing moment in which
freedom and consent are becoming influential in the most intimate sphere
of our relational engagements.
Social and Political Opportunity
Legal sociology studies the processes and mechanisms through which a
social claim obtains the necessary strength so that a citizen's claim gets to
be legislated. The sociology of law has the power to enhance justice, and
citizens, politicians, legislators, might create social awareness about an
MCS – Masculinities and Social Change, 8(1) 103
issue (Volkov, 2018). The social rejection of judicial decisions similar to
the decision in the “wolf pack” case is what legal sociology considers a
social opportunity to legislate social concerns. Therefore, how does a social
claim become a law? The role of any legislator is to identify the political
opportunity, the point of social consciousness, which generates a social
movement that is sufficiently strong to engage people in social struggle.
This change of mentality is what will contribute to impact and change
legislation. Without the struggle for women's rights, we would not have
legislation on gender issues.
On his struggle to return knowledge back to society to improve social
problems, Michael Burawoy (2005) discusses elevating private problems to
become public issues. Civil society improves at the point when evidence
and science are considered to be both a social movement and a scientific
discipline that calls for a critical engagement across the world. From its
very beginning, Burawoy’s claim focuses on the public, in the sense of
counting on public voices and research oriented towards public action.
Analyzing people’ mobilizations from below involves the voices of the
people who are studied on the central point and emphasizes the desire to
return knowledge back to society. If consent is not achieved towards this
end, Burawoy suggests creating the space and the appropriate context to
engage the public in dialogue, based on the Habermas communicative
action criteria (Burawoy, 2005).
The punishment decision against the "wolf pack" and above all, the
social rejection that provoked represents a social and political opportunity
for the revision of the concepts of harassment, aggression and sexual abuse
in legal terms. In fact, the Spanish government is already analyzing the
case, and a commission was created for this purpose. Female and male
experts in the field will prepare a report to include the matter of consent for
any sexual engagement. Scientific research from social and legal
perspectives should provide knowledge on what consent means and how it
should be asked, assured and reaffirmed. The issue of communicative acts
emerges at this point.
104 Vidu & Tomás Martínez – The Affirmative “Yes”
Communicative Acts for Ensuring Consent
The case of the "wolf pack" embodies the example of abiding consent. No
one has doubts about what occurred that night: the sexual act occurred. Five
men pushed an 18-year-old girl into an enclosed place for multiple
penetrations. The scenes were video recorded and spread via Internet and
social networks. It could be affirmed that almost nobody doubts what
happened and that these events occurred. The debate is whether these acts
constituted sexual assault and where the line for consent is placed. When in
2014, the group of students Our Harvard Can Do Better referred to the “No
means No” law as being insufficient legislation, they were raising the need
to convert consent into an affirmative expression and above all, to shed
light on the reality that in many situations, saying "no" is not a real option.
Explicit consent implies ensuring the freedom of the person who gives it,
lack of coercion and, no power relations, which is sufficiently strong to be
successfully accomplished by our social structure itself. As it has been
mentioned in the case of the laws stated above, for consent to be voluntary,
enthusiastic and repetitive, a series of social circumstances need to be
ensured.
In their pioneering research on gender violence, Benson and Thomson
(1982) framed the first steps of the struggle as naming situations of sexual
violence that result in a lack of specific vocabulary to verbalize episodes of
sexual harassment. Specific words are necessary to help identify, analyze
and report the problem. In addition, specific words are necessary to clarify
further research steps to address the problem (Benson & Thomson, 1982).
The consent debate therefore reverts to communicative acts, which have
many characteristics; such as communication can be verbal or nonverbal.
Habermas (1987), in his theory of communicative action, raises the
difference between communicative acts based on pretensions of validity
and communicative acts based on pretensions of power. Although this
difference is useful for advancing equality in the communication between
people, it is necessary to go further. Some scholars (Searle & Soler, 2004)
argue that the validity pretensions are also surrounded by a series of
contexts that do not always guarantee the correct way for the arguments to
truly be in conditions of equality. For instance, a situation of fear as
MCS – Masculinities and Social Change, 8(1) 105
coercion in a close space or an academic relationship with the prospect of a
better worse grade, are situations that limit any type of freedom.
Communicative acts can also be based on gestures. Body language may
settle a sign of denial. The enthusiasm to which the German law refers can
be manifested through body language. Speech acts are also a basis of the
German law because a person can deny consent with words or with tears.
Another aspect that laws include is the responsibility of the people involved
in the action to ensure that they obtain consent. In this line of research,
Weber's perspective leads us to consider what the author calls the ethics of
responsibility (Weber, 2012: 1904), which is based on the consequences
and not on the intentions of the action. That is, if the consequence of the
action conducted between two or more people has not been the desired
outcome, even considering the best initial intention, something should have
occurred in between that mostly has been omitted.
Discussion and Conclusion
Prior to considering the issue of consent and affirmative consent as
necessary for any sexual engagement, programs to prevent gender-based
violence started to be raised. Burn (2008) together with other colleagues
made efforts to prevent and intervene in sexual violence by identifying the
bystander intervention, which means that victims’ peers, mates and friends
are becoming “allies” and creating opportunities for support, assistance and
solidarity. Cases of sexual harassment that were reported and became
public are striking for their mobilization of other peers and the involvement
of more than only the people who are directly affected. This apparently
spontaneous reaction embraces an organized civil society, which is also
shaped by brave survivors whose courage is advancing changes in the
judicial system by strengthening our democratic state of law. This
supportive mobilization clearly shows the importance of creating a context
in which sexual harassment is not tolerated.
Pioneering regulations in this sense are aimed at defining consent as a
common agreement for permission to engage in a sexual encounter.
However, reality shows an absence of this premise. The debate on consent
is still vivid. Even the definition of consent is currently open; rather, the
focus should be on how to build a space in which consent, and a definition
106 Vidu & Tomás Martínez – The Affirmative “Yes”
of consent, can be freely agreed upon. The scientific community, policy
makers and society as a whole are discussing what it means and what we
intend by analyzing and legislating consent. Drawing from this standpoint,
this article contributes to this collective knowledge by considering several
legislative items and social movements as crucial for overcoming the
worldwide epidemic of gender-based violence. This community building is
achieved within a context of an egalitarian dialogue, which provokes the
construction of knowledge in a reflexive and intersubjective way and is
what people get after reflecting on their reality (Habermas, 1987).
Power relations are a part of any conversation and interaction; therefore,
it is necessary to be aware of this and consider it in every context (Searle &
Soler, 2004). An imbalance in any relationship has an influence on the
decision to provide consent or not. Concrete communicative acts are needed
to overcome the power difference and provide a better context for
consenting or not consenting. Governments and legislators are gaining the
fruitful paths made by prior social struggles to take responsibility and
approach affirmative consent as the basis for sexual offenses.
The current Spanish government has proposed new legislation on sexual
consent based on voluntary sex to ensure an explicit “yes”. Following
previous legislation, an offense based on consent includes a response
manifested through verbal or nonverbal language in an affirmative, free,
and voluntary manner that is repeated throughout the entire sexual activity.
The “No means No” statement is still valid; it is in fact the root of the “Yes
means Yes” regulation that only applies in some states. Other state acts
continue to use the “No means No” law with a similar interpretation
regarding consent.
Civil society mobilizations against consent are raising awareness about a
key historical moment. The bottoms-up approach that emphasizes the
potential of student and social communities who claim from below that
silence is not consent and that consent needs to be affirmative, frames a
debate in which sex is not taken for granted (Pérez Hernández, 2016).
Scholars are discussing the environmental conditions surrounding consent;
however, a broad agreement is shared regarding its necessity by all parties
engaged in any sexual activity who consent in a conscientious, voluntary
and enthusiastic way. There is also a shared agreement on situations under
which consent can neither be asked nor offered, such as situations with not
MCS – Masculinities and Social Change, 8(1) 107
only alcohol and drugs but also power, fear, strength and superiority.
Regarding international approaches, some states in the USA and some
European countries have already seriously considered the issue in legal
terms. In the Spanish case, the court’s sentence of the "wolf pack"
expresses a reality socially known as deliberate ignorance, which means
that considering an assumption, such as asking for consent knowing that the
answer would be "no", the question should never be asked to the victim.
Considering consent as a basis for sex, this deliberate ignorance must be
overcome. This specific ruling in the Spanish case has promoted the need
for a legal change because of its social rejection.
Drawing form this, the present article contributes to the study of
masculinities and the diversity of masculinities, by enhancing a powerless
masculinity in words of Connell (2012); meaning with no violence, in
which gender relations pretend to be equal, coherent and free of the
hegemonic structure. It indeed means a step forward to free desired
relationships and to the challenge of overcoming gender-based violence. To
that extent, legislation is important; however, changing the mentality about
sex is crucial for achieving social change to open a path for an inclusive
discourse on sexual freedom. When society rejects any type of abuse and a
discourse of supporting survivors prevails, more people tend to dare to
denounce sexual violence and more cases are approached at a legal level.
The scientific community also agree on the fact that, if punishment and
legal intervention are necessary for a successful social organization, it
means that other structural mechanisms have failed; prevention and social
responses have also failed. Educational policies advising youth to engage in
sexual relations based on affirmative consent are also pending issues for
further research and practice.
Notes
1 For more information, see https://www.theguardian.com/world/2018/apr/26/protests-spain-
five-men-cleared-of-teenagers-gang-rape-pamplona
2 For more information, see
https://elpais.com/elpais/2018/07/12/videos/1531410179_304241.html
3 This refers to the five aggressors of the Pamplona festival in 2016.
4 For more information, see https://www.boe.es/buscar/doc.php?id=BOE-A-1999-9744
5 For more information, see https://www.boe.es/buscar/doc.php?id=BOE-A-1999-9744
6 For more information, see https://www.un.org/preventing-sexual-exploitation-and-abuse/
108 Vidu & Tomás Martínez – The Affirmative “Yes”
7 For more information, see https://www.theatlantic.com/entertainment/archive/2017/10/the-
movement-of-metoo/542979/
8 For more information, see http://time.com/time-person-of-the-year-2017-silence-breakers/
9 For more information, see
https://elpais.com/elpais/2018/07/12/inenglish/1531406914_225623.html
10 For more information, see http://endrapeoncampus.org/
11 For more information, see https://www.nytimes.com/2018/06/29/science/francisco-ayala-
sexual-harassment.html
12 For more information, see
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967
13 For more information, see http://thecampussaveact.com/
14 For more information, see http://www.ourharvardcandobetter.com/
15 For more information, see https://www.nysenate.gov/legislation/bills/2015/S5965
16 These universities are the following: University of Minnesota, University of California,
Texas A&M, University of Virginia, Indiana University, Stanford University, Yale
University, University of Illinois, Urbana-Champaign and University of New Hampshire.
17 For more information, see http://www.loc.gov/law/foreign-news/article/germany-overhaul-
of-criminal-law-relating-to-sexual-offenses/
18 For more information, see https://www.womenlobby.org/IMG/pdf/2714_belgium_lr.pdf
19 For more information, see http://sexpression.org.uk/consent-in-sexual-contact/
20 For more information, see https://www.government.se/information-
material/2018/04/consent--the-basic-requirement-of-new-sexual-offences-legislation/
21 For more information, see
https://politica.elpais.com/politica/2018/05/09/actualidad/1525886000_192925.html
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112 Vidu & Tomás Martínez – The Affirmative “Yes”
Ana Vidu, Postdoctoral researcher at the Deusto Law School at the
University of Deusto, Bilbao, Spain.
Gema Tomás Martínez, Full professor at the Deusto Law School at the
University of Deusto, Bilbao, Spain.
Contact Address: Direct correspondence to Ana Vidu, Campus Bilbao,
Av. de las Universidades, 24, 48007 Bilbao, email: ana.vidu@deusto.es
