Is It Time for a “Yes Means Yes” Standard at Philly Colleges?

May 8, 2015

By Joel Mathis at Philadelphia Magazine

A City Council committee will hear testimony this afternoon about how Philadelphia colleges and universities handle and investigate sexual assault complaints — and contemplate whether a “yes means yes” standard should be required for college students who have sex.

“There needs to be an honest, frank dialogue about how we ‘un-stack’ the deck against victims of sexual assault,” Councilwoman Blondell Reynolds Brown said in a written statement ahead of Friday’s hearing. “One in five women on college campuses will be the victim of sexual assault. More and more brave victims are coming forward, only to find out that their school does not have their back, or wants to sweep it under the rug.”

A spokesman for Reynolds Brown said no specific legislation is planned to emerge from Friday’s hearing — but that there is hope some local universities and colleges will adopt the “yes means yes” standard.

“We have some ideas” for legislation, the spokesman said, “but we want to see what they think first.”

The matter of sexual assault has been the topic of some controversy on Philadelphia-area campuses, even as the Obama Administration has required publicly funded universities to adopt and raise standards for how they respond to such complaints. Last year, Philadelphia magazine documented the problems that Swarthmore College has had with the issue.

Similarly, an attempt to toughen such standards at Penn last year led to criticism from law faculty members there. And Temple was placed on a list of universities under review by the Department of Education for possible shortcomings in their compliance with federal rules on the topic. (A DoE spokesman did not immediately know the status of that review.)

“I’m not sure anyone’s really doing well. I think some are doing better than others,” Carol Tracy, executive director of the Women’s Law Project in Philadelphia, said of the city’s 14 colleges and universities. “I think they all read the newspapers and they know if they’re not doing a good job, students will hold them accountable.”

Last August, she said, her organization invited all 14 schools to the Philadelphia Safety Collaborative for a daylong talk about best practices for campus sexual assault. “All but two schools came to the meeting,” she said. “There’s really a desire to be there.”

In Philadelphia, Tracy said, city police have exclusive jurisdiction over criminal sexual assault complaints — not even campus police get involved in those investigations. But universities are responsible for deciding whether a victim’s civil rights to be free of sexual harassment and sexual violence were violated, and whether non-criminal consequences, like expulsion, will be applied to offenders.

Yes Means Yes

The “yes means yes” standard for student sex is not required under the Department of Education rules, but one state — California — has adopted it, and Reynolds Brown has taken notice. The standard — also known as “affirmative consent” — requires both parties to explicitly and affirmatively agree to sex; silence does not equal consent. It’s seen as stronger assurance of consent than the existing “no means no” standard.

In California, Gov. Jerry Brown last year signed a controversial law requiring universities that receive state funding to adopt the affirmative consent standard as a part of their sexual assault policies.

Advocates say the standard removes ambiguity from questions of possible assault. “Perceived lack of resistance, unconsciousness or inebriation is no longer a viable defense for an accused attacker,” Reynolds Brown said.

But critics say that in a he-said/she-said situation, the standard wrongly shifts the burden of proof to the accused, to prove they’re innocent of an accusation.

Joe Cohn, legislative and policy director for the Philadelphia-based Foundation for Individual Rights in Education, says the issue is tricky. Some schools don’t do enough to help rape victims, he said, while others end up railroading those accused of assault.

“Neither situation is acceptable or ethical,” Cohn said. “We’re hoping the City Council views this issue with balance.”

Today’s committee hearing will be packed: Chestnut Hill College, Drexel, La Salle and University of the Arts will all be represented with testimony, as well as about a half-dozen more student and activist groups.“It is time for us to have the conversation with higher education leaders out in the open,” Reynolds Brown said, “for everyone to hear.”

The hearing will be at 2 p.m. in City Council chambers at City Hall.