Another excellent post by Thomas:
One of the unique elements, the Affirmative Consent standard, is set forth here, and it isn’t what some people seem to be assuming. The common rhetorical device is that affirmative consent requires some particular form of communication — notarized contract, filled out in triplicate, raised seal, etc. Far be it from me to criticize anyone whose kink is to have a bunch of suit-wearing functionaries watch their sexual encounters. De gustibus non disputandum est, which I think is Latin for “your kink is not my kink but your kink is okay.” However, the idea that that’s what the statute requires is just bullshit. It’s not in there.
Here’s the heart of it: ” “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.” (Emphasis supplied.) It doesn’t say what form it has to take, or how one has to ascertain it. It doesn’t say anything about filling out a form, using an app, signing a waiver. It doesn’t even say you have to say any particular word. It doesn’t even require the word “Yes”! It just says that the absence of “no” isn’t necessarily yes, and it’s your responsibility, if you’re a student in a college in California, to make sure you have a yes. You can do that any way you like; it’s up to you how to see if you have a yes.
There are lots of ways to ask for a yes. If you lean in to kiss someone and they lean in to kiss you back, that’s yes. If you ask someone if they want your cock and they say, “I want your cock,” that’s yes, and if they put their mouth on it, that’s yes, too. If you’re fucking someone and holding them down and you’re both sweating and maybe bruised and you lean in and your hand is on their throat and you say, “can you still say no?” and they say, “yes,” that’s yes. We’re not kids here, right? We’ve all been there, and we know that people say yes, mean yes, shout yes and do yes in sex all the time. Those of us who don’t want to force anyone to do anything they are not into, don’t want or need sexual encounters where people are not doing yes as hard as they can.