California Says ‘Yes’ to Sex on College Campuses

September 29, 2014

By Natalie Kitroeff at Bloomberg Businessweek

Before having sex, students at California colleges that receive state funding must now get a clear indication that both participants agree to the act, according to a new bill signed by Governor Jerry Brown.

“Lack of protest or resistance does not mean consent, nor does silence mean consent,” reads the law, which defines consent as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” The law also specifies that consent “can be revoked at any time” during sex.

The bill is the latest effort in the government’s wide-reaching campaign to crack down on sexual assault on college campuses. It is the first time a state has mandated that public colleges consider sex nonconsensual any time that both parties involved did not explicitly say they wanted to engage in it.

“The conversation on sexual assault on our college campuses turned an important corner today from chatter to action,” said Democratic State Senator Kevin de León, who sponsored the bill, according to a Los Angeles Times report.

Some object to the government’s arm reaching into college dorm rooms, however.

“It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms,” the Los Angeles Times editorial board wrote of the law in May.

Others say that the law imposes an unfair burden of proof on people accused of assault, who now will have to show that they asked and obtained consent to beat charges of rape.

“That standard is nearly impossible to meet,” said Joseph Cohn, the legislative policy director at the Foundation for Individual Rights in Education, a group that advocates for individual rights on college campuses. Sometimes people have text messages that can be used to substantiate consent, but that’s rare, Cohn says.

“The norm isn’t for every time someone has a sexual relationship with another person to have documentation before and afterwards.”

There does seem to be a broader need to clarify the concept of consent on college campuses—and probably beyond. A survey last year of 185 college students found that men tend to give and get consent nonverbally, while women think that saying yes to sex is something that happens out loud.

About three-quarters of the women said they’d give consent using verbal cues, sometimes in combination with nonverbal ones, but less than a third of men said they got consent based on verbal affirmations. The study, which was published in the peer-reviewed Journal of Sex Research, also found that women tended to wait for men to ask if they were OK with what was happening before themselves expressing their desire to continue or stop having sex.

“If he never asks, and she doesn’t say anything, that can be problematic,” says Kristen Jozkowski, the University of Arkansas professor who authored the study.

One upside of the law, per Jozkowski, is that it might improve the sex lives of Californians. In a survey she conducted last year of more than 600 college students that was published in the International Journal of Sexual Health, Jozkowski found that men and women rated their most recent sexual experience more highly if they felt as though they’d agreed to it and were safe. In other words, she says, “When you have consensual sex, it’s better than sex you’re on the fence about.”

Cases: California: Affirmative Consent Bill Threatens Student Due Process