Apparently No Still Means Yes, For “Girls Gone Wild”

“Girls Gone Wild” goes to various campuses and bars where women are partying and encourages them to reveal their bodies and perform for the cameras. In most of the filmed scenes, these women are clearly inebriated; however, “Girls Gone Wild” does not take that into consideration when they are attempting to secure consent. The goal for the company is to capitalize on “raunch culture,” thereby securing a profit through what is clearly the exploitation of young women.

Saint Louis Today has a report about a young woman who sued claiming that she did not give consent to appear in the videos. Apparently, Jane Doe (as she was known in her lawsuit), claimed that she was at a bar dancing, when a woman came behind her and pulled her top down. This was recorded by the camera and placed on a video, which was subsequently marketed for sale.

Both sides built their case around the issue of consent. The plaintiff explicitly stated that she did not give consent and her lawyer claimed that she could be heard on the tape saying no. Unfortunately for Jane Doe, Patrick O’Brien, the jury foreman felt that: “Through her actions, she gave implied consent. She was really playing to the camera. She knew what she was doing.” After ninety minutes of deliberation the jury delivered a 9-3 decision for the defense.

The plaintiff will now have to live with the knowledge that there is footage of her semi-nude body available to the public that she did not approve of and that a company is now making a profit from. This decision is much larger than the repugnant “Girls Gone Wild” franchise; it brings into question what constitutes consent.

Certainly, it should be clear by now that the absence of a clearly articulated yes does not constitute consent. Even if the plaintiff was enjoying herself, she absolutely had the right to determine when the activity had moved beyond her comfort level. Taking this ability away from her is tantamount to suggesting that she does not have the right to complete autonomy over her person. This is very much like a rapist continuing with sexual behaviour after the woman has said no, because his raging erection demands satisfaction.

In Marcella Chester’s analogy regarding affirmative consent, she points out that handing over your wallet to a robber that demands it is not a free action because you have been placed under duress. The plaintiff clearly did consent to being filmed because she was performing for the camera; however, because she did not lower her own top, she could not possibly have consented to the display and filming of her naked breasts — this was an action forced upon her by a third party.

Furthermore, consenting to one action does not imply consent to further activity and this is what the jury so clearly failed to see, because affirmative consent was not factored into their decision. Affirmative consent is not a concept that feminists created to stifle sexual behaviour; it is in fact, the only perfect strategy to ensure that regardless of the sexual activity involved, that all are comfortable with the level of engagement.

What happened to the plaintiff definitely rises to the level of an assault, one which “Girls Gone Wild” not only filmed but profited on. Without a uniform understanding of what constitutes consent, the violation of women will continue to be something that is easily challenged in a court of law, making it extremely difficult for justice to be achieved. It is because the words yes and no are clearly not open for interpretation that we refuse to make this the standard of consent. The law as it is written, and in fact applied in this case, is not about ensuring a reduction in the number of sexual assaults, or even affirming the right to female autonomy; it is about ensuring an avenue of patriarchal control over women’s bodies.

“No means no” and “yes means yes” are very simple to apply as a rule of law, as can be seen by the Canadian Criminal Code.

[C]onsent is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question.” CC § 273(1)(2). And CC § 273.2 provides that:

[i]t is not a defence . . . that the accused believed that the complainant consented …where (a) the accused’s belief arose from the accused’s: (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Similarly in the U.K, according to the Sex Offences Act (2003):

1) A person (A) commits an offence if— (a) he intentionally causes another person (B) to engage in an activity,

(b) the activity is sexual,

(c) B does not consent to engaging in the activity, and

(d) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

There is no universal standard of consent across the United States. Though many of these cases in the U.K. and Canada will still come down to a he said/she said because of the number of people involved, affirmative consent means that sex and sexual behaviour/interaction is understood as something that both parties must wilfully participate in. Thus the victim (or in this case, the plaintiff) necessarily begins from a position of bodily autonomy.

There should be no wavering, or questioning whether or not a sexual interaction is indeed desired, when it can simply be determined with one word – YES. No means no — but yes always will always equal consent, and that is something every person should have the right to actively say when there is an interaction of a sexual nature occurring. There is simply no reasonable excuse for affirmative consent to waver from state to state when it has already been proven in two other countries to be enforceable and functional.

The plaintiff did not receive justice in this case. We can simply add this to long the list of women for whom the justice system has failed, or we can decide to advocate for affirmative consent, because that is the only way we can ensure that all sexual interaction is desired. Until the day women have complete autonomy over their physical bodies, we cannot claim to live in an equal world.