By Gail Sullivan at The Washington Post
The California state senate unanimously approved a bill on Thursday that defines when “yes” means “yes” to sex.
Instead of “no means no” – the phrase commonly associated with sexual assault prevention – the law would require “affirmative, conscious, and voluntary agreement” by each party to engage in sexual activity. If Gov. Jerry Brown (D) signs the bill into law – he has until the end of September – colleges and universities would have to adopt the so-called affirmative consent standard to continue receiving state funds for student financial aid.
The move comes as universities across the country are under pressure to improve how they handle sexual assault allegations. Several California colleges are on the Department of Education’s list of 55 institutions under investigation for allegedly mishandling sexual assault complaints. The language of the bill is based on the recommendations of a White House student sexual assault task force.
Under the proposed standard, the fact that a person didn’t say “no” is no defense in a campus sexual assault investigation.
In addition to consenting up front, the bill requires affirmative consent to be “ongoing throughout the sexual activity,” meaning that sexual partners must agree to each step of a sexual encounter as it progresses and consent can be revoked at any time. The standard would apply to all sexual encounters regardless of whether the parties are having a one-night stand or are in a long-term relationship.
One thing the bill doesn’t say is that affirmative consent must be verbal. The bill’s original language warned “relying solely on nonverbal communication can lead to misunderstanding,” but that language was removed as was the requirement that consent be “unambiguous.” Nonetheless, as Slate’s Amanda Hess pointed out, this fact was lost on commentators, some who lamented the standard would redefine most sex as rape and would require students to agree to a verbal or written contract before sex.
Students, too, were somewhat confused. “I feel like their hearts are in the right place, but the implementation is a little too excessive,” Henry Mu, a 24-year-old biology major at California State Long Beach told the Press-Telegram. “Are there guidelines? Are we supposed to check every five minutes?”
While the bill doesn’t spell out what “affirmative, conscious, and voluntary agreement” looks like in practice, it’s very clear what doesn’t count as consent: lack of protest or resistance, silence, unconsciousness or being asleep or too intoxicated to understand what’s going on.
The bill also requires colleges to implement “victim centered” sexual assault prevention and outreach programs to teach students about “the practical implications of an affirmative consent standard” that would “hopefully,” Hess wrote, “spark honest conversations about what is and isn’t over the line.”
Sexual assault prevention advocates welcomed the bill, which challenges the idea that victims have to resist an assault in order to have a valid complaint. “The survivors [of sexual assault] are going to be positively affected because they are going to be going into a system that no longer asks them why they didn’t do something,” Denice Labertew, the director of advocacy services at the California Coalition Against Sexual Assault, told Inside Higher Ed in June.
But critics say the proposal unfairly burdens those accused of sexual assault. “How does a person prove they receive consent “shy of having it videotaped,” Joe Cohn, the legislative policy director at the Foundation for Individual Rights in Education, told Inside Higher Ed. Cohn said the policy reverses the presumption of innocence for the accused, which he called a “dramatic and important shift.”
The California state university system supports the bill and has already updated its policies to include similar language. Other universities including Dartmouth and Yale have also adopted affirmative consent policies.