Everyone Likes Affirmative Consent, Until They Don’t

Corey Yung

Corey Rayburn Yung is a Professor at the University of Kansas School of Law. His scholarship primarily focuses on sexual violence, substantive criminal law, and judicial decision-making. Yung’s academic writings have been cited by state and federal courts, including the Supreme Court of the United States. Before Yung began his professorial career, he served as an associate for Shearman & Sterling in New York and clerked for the Honorable Michael J. Melloy of the United States Court of Appeals for the Eighth Circuit.

You may also like...

8 Responses

  1. Douglas Levene says:

    Prof. Yung,
    I admire your courage in teaching a sex crimes class in these hypersensitive days. I am quite certain that if anyone taught the law of rape the way Prof. Israel did 30 years ago (“how do you put a pencil in a moving Coke bottle”), he would be drawn and quartered, without a trial.

  2. David Bernstein says:

    Corey, you are talking about affirmative consent in the abstract, and about whether whether people “like” or are “fans of” affirmative consent. Cathy and I are talking about an actual bill that may very well become law, that would dictate penalties to students for sexual assault. Consider this language. “Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.” So if you are going to ask about the tying and whip hypo, or the anal sex hypo, what you need to ask is not “how do you feel about affirmative consent in these contexts” in the abstract, but “how do you feel about a law that would require a university to punish a student as a rapist for not getting affirmative consent for initiating these activities, even if the couple was at the time involved in a romantic relationship and had engaged in these activities many times before, and even if the initiating party stopped immediately when asked?”

    I can imagine much more narrowly tailored “affirmative consent” rules that might even be good ideas (like don’t attempt anal or vaginal sex for someone for the first time without affirmative consent).

  3. David Lang says:

    re: your horror at people touching unconscious partners in a sexual fashion, in any case where the couple is sleeping in the same bed, it’s hard to say that all touching between them that could be considered “sexual” should first require waking the other person up and asking their permission.

    remember that this can include kissing someone goodby, stroking their cheek, etc.

    but even far more intimate contact is considered normal by many people (and romantic to wake up your partner in such ways)

  4. Corey Yung says:

    Hi David B,

    Although I am not a fan of the bill, I actually think it will have little impact. Stories between alleged victims and rapists rarely match. Particularly because the law allows non-verbal communication, an alleged rapist is still free to argue that he thought there was a signal to proceed. The way rape cases are adjudicated (when proper procedures are in place) is usually more reflective of our culture than our law. As Dan Kahan’s study illustrated, what you tell potential jurors about consent almost never matters. The point of my post, consistent with Kahan, is that cultural norms govern consent law and not the inverse. I oppose the bill because it is likely to accomplish almost nothing positive while creating a backlash from people believing the law is overexpansive. Of course, until consistent adequate procedures are in place on campuses, it is hard to know for sure how such a rule would be applied in practice.

  5. Corey Yung says:

    Hi David L,

    I have no problem with long term couples having intimate contact while one person is asleep so long as both people have previously consented. And because the article was about rape, my dispute with him was focused on instances involving conduct beyond kissing and touching. I found Rubenfeld\’s belief that sexual (not just intimate) conduct is \”normal\” to be surprising. Of course, he might be right and my assessment of general practices is wrong. Nonetheless, Rubenfeld\’s statement is problematic in the context of his overall argument. He contended that the non-consent element of rape statutes should be removed. In such a world, there would no longer be a legal line between non-consensual sex with an unconscious person and previously agreed to sex with an unconscious person.

  6. Nate says:

    If the true goal is “affirmative consent”, why would oral agreements be sufficient? How could someone prove ongoing affirmative consent without (1) full and complete audio/video recordings, and/or (2) periodic written agreements documenting and re-affirming consent? In the absence of written waivers or recordings, the parties’ would be left with oral testimony and extrinsic evidence about the scope, nature and/or duration of consent.

  7. PrometheeFeu says:


    I’m not sure what you mean by affirmative consent. I usually read it as implying that the victim of a sexual assault does not have the responsibility to say “no” as a general rule. But it almost sounds like what you mean is explicitly expressed consent.

    Going off that assumption, I think merely requiring that all involved have a reasonable belief (or some stricter standard) that consent was obtained is sufficient to cover both of your student’s positions. It’s a relatively simple Bayesian updating problem.

    -If your reasonable priors are that the person is likely to consent, (it’s run-of-the-mill sex, or you want to engage in kinky activities after picking them up at a kinky party) it is reasonable to conclude consent from even somewhat ambiguous positive signals.
    -If your priors are really strong (you have engaged in that activity with that person in those circumstances on multiple occasions and they have always seemed quite happy about it) even some mild protestations (“I’m trying to finish that paper”, “I’m a little tired tonight”) could still allow you to reasonably infer consent. (on the other hand, a stronger “no” would overcome your initial prior)
    -If your priors are weak (you invited your date in for a cup of tea, you haven’t spoken about sex at all and you want to engage in highly unusual sexual activities) it may be that nothing short of an explicit “yes” could reasonably lead you to infer consent.

    Of course, there are some administrability issues which may warrant deviating from such an ideal standard. Nevertheless if we do, we should explicitly recognize that we will be criminalizing some consensual sexual activity.

  8. AYY says:

    Prof. Yung, The question is not whether something is all right with the other person, it’s whether an external sanction that has the force of criminal law, or civil law should be applied. If a person is in a sexual relationship with someone, then there has to be a justification for the external sanction to apply.

    I see that you are not in favor of the bill. But there are more problems than the ones you mention. Suppose you have a partner who needs some warming up, and is passive until she is warmed up, and ihe warming up is usually but not always enough to get her interested. Under an affirmative consent rule, at what point does the warming up process become a sexual assault that the law should punish, and why? Does it depend on whether she’s warmed up, or how warmed up she is? Does it depend on your perceptions of how she’s responding? Or what is she says not that spot, this spot–you’re not doing it right. And then suppose you’re an attorney and you’re supposed to follow the law even though a prosecutor wouldn’t file charges.