More States Tell College Students to Say Yes Before Sex

November 24, 2014

By Natalie Kitroeff at Bloomberg Businessweek

Facing pressure from the White House and the public, a growing number of states are weighing a new tactic in the battle against sexual assault on college campuses: requiring students to talk about sex.

New Jersey is the latest state to consider a law that would withhold state funding from colleges unless they adopt a so-called affirmative consent policy in their sexual assault investigations. The policy would require students to get explicit agreement from one another before engaging in any sexual act. In October, Democratic Senator Jim Beach introduced a law that would force colleges to implement a “yes means yes” rule, meaning that sex is considered consensual only if both parties have clearly indicated they were willing.

“It will create a more supportive environment and get rid of the notion that victims must have verbally protested or physically resisted in order to have suffered a sexual assault,” Beach said in a statement.

The law was modeled on a bill signed in September by California Governor Jerry Brown, which promised to withhold funding from colleges that did not implement stricter standards of consent. The California rule defined consent as “affirmative, conscious, and voluntary agreement to engage in sexual activity,” and specified that “lack of protest or resistance does not mean consent, nor does silence mean consent.” New Hampshire Democratic Representative Renny Cushing filed a similar bill in October, which also threatened to revoke property tax exemptions from private colleges that did not implement affirmative consent.

New York Governor Andrew Cuomo announced last month that he instructed the 64 campuses that belong to the State University of New York to adopt a rule requiring students to expressly indicate their willingness to have sex before having it. Like California’s rule, saying yes to one type of sexual act, like kissing, is not considered a blanket approval for going further. “Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity,” the SUNY rules will say, according to the university’s website (PDF).

Those who oppose affirmative consent say the rules create standards that are unreasonably hard to meet, since students can’t prove they got a formal agreement from their partner.

“It creates all kinds of practical challenges for how schools are going to enforce this with any degree of fairness,” says Joe Cohn, legislative policy director at the Foundation for Individual Rights in Education, a group that has opposed the bills. “It is going to undermine trust in the integrity and reliability of campus judiciaries.”

Supporters of the measures contend that while tough, the laws are a critical step toward tackling a culture where a lack of consent is the norm. “People weren’t wearing seat belts until it became the law,” says Kristen Jozkowski, a professor focusing on sexuality at the University of Arkansas. “If you want to change people’s behaviors, then change policy.”