Rethinking affirmative approaches to consent: a step in the right direction

Establishing the absence of consent is central to determinations of sexual violation across a number of jurisdictions. Yet, questions around how this concept should be legally defined evoke contestation. One formulation of consent that has gained traction in recent years is one that encompasses an ‘affirmative’ or ‘expressive’ dimension. Instead of requiring fact finders to establish the absence of consent, this model requires fact finders to establish its presence. Indeed, mantras such as ‘yes means yes’ have firmly entered the lexicon of sexual violence activism, in an attempt to provide a straightforward formula and remove ambiguity. Drawing on feminist scholarship highlighting the messy contexts within which sexual decision making occurs, it is suggested that affirmative models risk more than they safeguard by erasing, rather than engaging with, this complexity. The Chapter provides a critical exploration of the relationship between activism on consent and legal reform. It concludes that while there is a place for rethinking the concept of consent, we should shift our attention to the process of communication as opposed to its form. The Chapter concludes that in moving forward, there is potential in further exploring the requirement, in some jurisdictions, that the defendant take steps to ascertain consent.