No Means No, and Yes Means Yes: Moving To A Different Model Of Consent


No Means No, and Yes Means Yes: Moving To A Different Model Of Consent
The ‘yes means yes’ school of thought argues that consent can – and should – be made cool. 

The rise of the #MeToo and Time’s Up movements have put an unprecedented focus on the issue of what is acceptable sexual behaviour. An explosion of high-profile allegations in the Hollywood movie industry and in the Australian theatre scene have only added to the public scandal.

Of all the allegations of sexual misconduct swirling in Hollywood, the case involving Aziz Ansari is most divisive, because it centres on what constitutes consent. There is now pressure to move away from consent that can be implied or inferred, to a pure affirmation model, where only yes means yes.

The extent of the problem

The Australian Bureau of Statistics (ABS) defines sexual assault as an act of a sexual nature carried out against a person’s will or without a person’s consent. It involves physical contact and/or the use of physical force, intimidation or coercion.

The Australian Institute of Criminology indicates that the rate of sexual assault recorded by police in Australia has increased steadily since 2012.

According to ABS figures from 2015–16, during the 12 months prior to interview, 77,400 Australians aged 18 years and over (0.4% of the population) experienced sexual assault. However, under-reporting was prominent. Only some 30% of matters were reported to police.

Of those sexually assaulted, 21% were male and 79% were female. More than 60% of those assaulted were aged between 18 and 34 years.

What is consent?

In Australian jurisdictions consent is generally held to include free and voluntary agreement given by the complainant.

All jurisdictions, except for the Australian Capital Territory (ACT), have statutory definitions of consent. The ACT provides a list of circumstances that do not constitute consent.

The definitions of consent do not outline the form or way such agreements need to be formulated. Rather, they go to the context of consent and the ability to give consent.

However, the Queensland Court of Appeal noted:

A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it. Failing to do so may, however, depending on the circumstances … provide a basis for exemption from criminal responsibility under s.24 of the Criminal Code [mistake of fact].

The UK Sexual Offences Act talks of consent being agreement by choice, and the person has the freedom and capacity to make that choice.

The United Nations Handbook for Legislation on Violence against Women states that consent requires:

the existence of ‘unequivocal and voluntary agreement’ and requiring proof by the accused of steps taken to ascertain whether the complainant/survivor was consenting.

JurisdictionRelevant lawMeaning of consent
ACT Section 67, Crimes Act 1900 ACT Does not define consent but provides a list of circumstances in which consent can be deemed to be negated.
NT Section 192 Criminal Code Act (NT) Consent means free and voluntary agreement.
NSW Section 61HA, Crimes Act 1900 A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
QLD Section 348, Queensland Criminal Code Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
SA Section 46, Criminal Law Consolidation Act 1935 A person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity.
TAS Schedule 1, Criminal Code Act 1924 In the code, unless the contrary intention appears, consent means free agreement.
VIC Section 36, Crimes Act 1858 Consent means free agreement.
WA Section 319 (2), Criminal Code 1913 Consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means.

The affirmation model

The affirmation model of consent essentially relies on a positive agreement between the parties before sexual interaction can begin – in simple terms, a clear and unequivocal “yes”.

In the United States, the primary focus of affirmative consent is on how sexual assaults are handled in universities and colleges. California and a handful of other states, and hundreds of educational institutions, have now enacted affirmative consent laws and policies.

The Californian law states:

“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. 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.

A person must take reasonable steps, in the circumstances, to ascertain whether the other participant affirmatively consents.

Tasmania does reference the fact that consent does not exist if the person “does not say or do anything to communicate consent”. In other words, in the absence of positive affirmation there is no consent.

The allegations against Ansari centre on misreading non-verbal cues, with the complainant stating:

You ignored clear non-verbal cues; you kept going with advances.

Ansari did stop when the complainant asked him to. The affirmative model removes any ambiguity around the issue of consent – it is either yes or no, and the model places an onus on both parties to obtain such permission.

Adopting an affirmative consent model may not necessarily remove issues of credibility at trial when there is no secondary evidence of consent (such as recordings or witnesses).

In acquaintance sexual assaults, consent becomes a central evidentiary element required to be proven. As a former senior detective, I saw these matters often reduced to a battle of credibility between the accused and the accuser. In Australia between 2010-2016, the majority of reported offences were acquaintance based.

Supporters of the laws argue it removes the onus on the victim to show resistance to the act, or the fact they said no, and addresses a culture of entitlement in sexual interactions. Requiring affirmation, it is argued, can be used to create a culture of respect.

Critics of the yes-means-yes model suggest it removes due process and impinges on the rights of the accused by changing the evidentiary onus. Some argue that, given the nature of sexual interaction, it removes the passion from such transactions.

Making consent cool

Compounding this is the need to obtain consent for each act of sexual interaction. The premise being ask first and ask often.

While such a requirement may appear awkward, others argue it can be turned into “enthusiastic consent” where it can be entwined with foreplay and

turned into an integral part of a sexual encounter as partners banter back and forth, tease, and check in with each other on what they are (and aren’t) going to do.

When I ask my criminology students what consent in sexual assault matters means, few are able or willing to answer. Such questions are met with embarrassment and the inevitable answer is “you just know”. Of note is that my classes are overwhelming female. There are differences as to how males and females seek and interpret consent.

The ConversationThis highlights that not only must we focus our efforts on educating on appropriate sexual behaviours, but we must also educate those most at risk as to what levels of consent they are entitled to. As one article highlighted, we need to make consent cool.

About The Author

Terry Goldsworthy, Assistant Professor in Criminology

This article was originally published on The Conversation. Read the original article.

Related Books:

It's So Amazing!: A Book about Eggs, Sperm, Birth, Babies, and Families (The Family Library)

relationshipAuthor: Robie H. Harris
Binding: Paperback
  • Candlewick Press MA

Brand: Candlewick Press MA
  • Michael Emberley

Studio: Candlewick
Label: Candlewick
Publisher: Candlewick
Manufacturer: Candlewick

Buy Now
Editorial Review: “An outstanding book. . . . Meets the needs of those in-between or curious kids who are not ready, developmentally or emotionally, for It’s Perfectly Normal.Booklist (starred review)

How does a baby begin? What makes a baby male or female? How is a baby born? Children have plenty of questions about reproduction and babies—and about sex and sexuality, too. It’s So Amazing! provides the answers—with fun, accurate, comic-book-style artwork and a clear, lively text that reflects the interests of children age seven and up in how things work, while giving them a healthy understanding of their bodies. Created by the author and illustrator of It’s Perfectly Normal, this forthright and funny book has been newly updated for its fifteenth anniversary.

Consent: The New Rules of Sex Education: Every Teen's Guide to Healthy Sexual Relationships

relationshipAuthor: Jennifer Lang MD
Binding: Paperback
Studio: Althea Press
Label: Althea Press
Publisher: Althea Press
Manufacturer: Althea Press

Buy Now
Editorial Review:

A contemporary guide to sex education that answers the most pressing questions teens and young adults have about dating, relationships, consent, and sexual safety.

There’s a lot to talk about when it comes to sex education―anatomy, communication, safety, and more. In this groundbreaking book, Dr. Jennifer Lang delivers a frank, compassionate, and evidence-based guide to healthy sexual relationships, focusing on the crucial role of consent in sex education.

A board-certified OB-GYN, Dr. Lang breaks down confusing concepts into factual and clear guidance. She outlines not only what consent looks and sounds like, but the importance of recognizing when a person has the capacity to give consent, and when they don’t. Written for all teens, and inclusive of all sexual identities and orientations, Consent is a reference guide to healthy sexual expression and relationships.

This book’s approach to sex education covers:

  • An overview of human sexuality including what sex is and how it feels, separating sex education fact from fiction.
  • A discussion about relationships & dating and the various forms they take during adolescence, including some of the most common scenarios and healthy ways of handling them.
  • Tools for communicating and understanding consent, as well as critical information about the capacity to give consent, the language surrounding it, and what constitutes abuse and assault.

The way that teens think and talk about sex today has changed. Sex education needs to change, too. Teens and young adults will find the sex education information they need to make empowered choices about their bodies, their desires, and their boundaries in Consent. You’ll never think of sex education in the same way again.

It's Perfectly Normal: Changing Bodies, Growing Up, Sex, and Sexual Health (The Family Library)

relationshipAuthor: Robie H. Harris
Binding: Kindle Edition
Format: Kindle eBook
Brand: Unknown
  • Michael Emberley

Studio: Candlewick Press
Label: Candlewick Press
Publisher: Candlewick Press
Manufacturer: Candlewick Press

Buy Now
Editorial Review:

The definitive book about puberty and sexual health for today’s kids and teens, now fully updated for its twentieth anniversary.

For two decades, this universally acclaimed book on sexuality has been the most trusted and accessible resource for kids, parents, teachers, librarians, and anyone else who cares about the well-being of tweens and teens. Now, in honor of its anniversary, It’s Perfectly Normal has been updated with information on subjects such as safe and savvy Internet use, gender identity, emergency contraception, and more. Providing accurate and up-to-date answers to nearly every imaginable question, from conception and puberty to birth control and STDs, It’s Perfectly Normal offers young people the information they need—now more than ever—to make responsible decisions and stay healthy.


follow InnerSelf on


 Get The Latest By Email


follow InnerSelf on


 Get The Latest By Email