California’s new “yes means yes” law has garnered a lot of opposition. Critics argue that it will be impossible to enforce, that it constitutes government intrusion into our bedrooms and (I assume mockingly) that it will require men to tape video cameras to their genitals.
I know differently.
As former chair of Suffolk University’s Institutional Review Board (the body that reviews the ethics of research involving human subjects), I’ve seen how smart protocols for obtaining informed consent from human subjects can protect vulnerable populations without hindering research. While, clearly, there are differences between a lab and a college party, universities — and men — can learn a lot from the work we’ve done.
In both settings, the possibility of misunderstanding is high. Subjects may assume that there’s no risk to participation or that researchers have their best interests at heart. These kinds of assumptions — by researchers and subjects — can lead to tragedies like the Tuskegee syphilis experiment, in which rural African American men were given free meals (and burials) for participating in a study but were never told that they tested positive for syphilis.
Power differentials shape research interactions. Researchers possess knowledge, institutional backing, monetary resources and access to goods and services like new medical treatments. Human subjects have none of these things. Gendered interactions similarly are inherently unequal given the greater incomes, political power and physical strength of men, as well as the far greater likelihood that women (nearly one in five) have been raped at some time in their lives.
Informed consent tries to level the playing field and ensure that everyone has the same ideas and goals going into an interaction.
That doesn’t require reading off a list of bureaucratic legalese. To the contrary, it entails authentic conversation regarding the roles of all participants.
Just as a researcher cannot acquire informed consent from a comatose or cognitively impaired subject, “yes means yes” requires all parties to a sexual encounter to be conscious and sufficiently sober to give meaningful consent. Consent does not necessarily need to be verbal – it can be indicated by a vigorous nod of the head or by moving in closer to a partner. But it can never be assumed simply by the absence of aggressive resistance.
Similarly, just as it is the responsibility of the researcher to share with potential subjects all information needed to make an informed decision, it is the responsibility of potential sexual partners to disclose information such as HIV status or actual motivations behind the encounter (for instance, whether the encounter is part of a fraternity initiation ritual).
Researchers are required to present potential subjects with a real choice regarding participation; we are not permitted to offer substantial monetary incentives, and we are not allowed to withhold access to services or resources for those who do not wish to participate. The responsibility of researchers to refrain from badgering, tricking or threatening subjects or potential subjects directly translates to the college setting where potential sexual partners should be educated to avoid pressure, such as “If you don’t have sex with me I’ll tell people you’re a frigid bitch and you’ll never be invited to another party” or trickery, such as inviting a first-year student to a “cool” frat party with the intention of plying her with alcohol and manipulating her into a sexual encounter.
Particularly relevant to colleges, researchers are required to inform and remind human subjects that they may leave the study – with no negative repercussions and no need to justify or explain their decision – whenever they wish. In terms of California’s SB967, this means that a kiss really can just be a kiss. Both parties can walk away without threatening or humiliating accusations of “being led on.”
In human subjects’ research, as in sexual encounters, no law will change the behavior of those few individuals truly intent on hurting others. While the initial push for human subject’s research regulation came about in response to the horrific Nazi medical experimentation on powerless victims, I don’t believe that the best ethics board in the world could have stopped Nazi doctor Josef Mengele.
SB967 will, however, educate many men about how to assess their own behavior and interactions. It will empower the many women who are not sure whether they really can say “no,” or if the unwanted sexual encounter really was “rape” to report and confront harmful actions and policies. And it will obligate colleges to provide compulsory and meaningful training, which is what higher education should be about.