By Anita Chabria at The Guardian
As the “yes means yes” standard of sexual conduct spreads to many US college campuses, California legislators have passed a new measure that will put affirmative consent curriculum into the state’s high schools beginning next year.
The legislation will require high schools that have a health component as a graduation requirement to teach the “different forms of sexual harassment and violence”, and include lessons on seeking explicit, affirmative permission from a partner before moving forward with sexual activity. The bill, SB695, is now awaiting the signature of the governor to become law, expected in the coming days. California would be the first state in the nation to adopt a mandatory education policy on the topic for K-12 students.
“Young people’s attitudes about gender and sexuality start well before high school,” said state senator Hannah-Beth Jackson, the co-author of the bill. “It’s really critical that we start addressing issues of healthy relationships and sex and how to handle one’s sexuality and sexual behaviors at the earliest possible stage because what we are seeing in our culture today is clearly sexual violence that is completely out of control and at epidemic levels.”
California led the way on affirmative consent legislation last year when it became the first in the US to require that all state colleges receiving public funds for financial aid use a “yes means yes” standard when investigating sexual assaults, another bill co-authored by Jackson and senate president pro tempore Kevin de Leon.
New York followed by adopting a “yes means yes” punitive policy and 12 other states and cities have since considered affirmative consent measures, according to Consent Gamechangers, a Florida-based advocacy organization. Many universities have implemented their own affirmative consent policies regardless of state law, as the affirmative consent mantra has garnered support from feminist celebrities such as Gloria Steinem and Lady Gaga.
“It’s absolutely becoming more mainstream,” said Alison Berke Morano of Consent Gamechangers. “It’s just everywhere.”
The new California requirement mandates only that high school educators address the concept of “yes means yes” with students, not enforce it as the measure of consent in a sexual assault case. But that introduction may help raise awareness of the expectations and consequences for not adopting affirmative consent behavior before heading off to universities and colleges, where breaking “yes means yes” policies can now lead to expulsion. And for those that choose the non-college path, it gives them knowledge of the sexual guidelines that some legislators hope will eventually become the cultural norms.
The definition of consensual is “affirmative, conscious and voluntary agreement to engage in sexual activity”. It also specifies that “lack of protest or resistance does not mean consent, nor does silence mean consent”. Consent can be verbal or non-verbal but being under the influence of drugs or alcohol can negate a person’s ability to give consent.
The policies are meant to address high levels of sexual assaults occurring on college campuses – attacks that are especially prevalent in the freshman year for women. One in five college women report experiencing physical abuse, sexual abuse or threats of physical violence during their education, according to a 2015 white paper by the Association of Title IX Administrators (ATIXA). But researchers have found a “red zone” period between the start of school and the late fall freshman year when the risk for sexual assault is especially elevated for women.
“Freshman year is a heightened time for sexual assaults,” said Stephen Cranney, a researcher at Baylor University’s Institute for the Studies of Religion who has examined college sexual violence. Cranney conducted one of the most comprehensive US surveys to date on sexual assault on college campuses and found that 5% of freshman women reported some type of sexual assault, compared to 2% for sophomores. “If they get past the freshman year without being sexually victimized, then their risk for sexual victimization later is significantly less.”
That reality – coupled with the fact that women not enrolled in college were 1.2 times as likely to be raped or sexually assaulted compared with those in higher education, according to a US Justice Department study – makes it essential to reach kids with the “yes means yes” idea before their college years, said educators.
“Particularly for young adults who are navigating their early sexual experiences, this is a new standard,” said Emilie Mitchell, an assistant professor of psychology who teaches human sexuality in the Los Rios Community College district, one of the largest community college systems in California.
The majority of universities with affirmative consent policies require students to go through an orientation on sexual conduct when they begin school, often their first exposure to the notion, said Mitchell.
“This is the first year that I’ve added the slide in about affirmative consent,” said Sarah Meredith, director of the University of California at Davis Center for Advocacy Resources and Education, who handles sexual conduct orientation for incoming students. “Sometimes I’ll ask the group, ‘How many of you have heard of the “yes means yes” bill?’ I probably get about 10% of the crowd that will raise their hands”.
“I definitely think there needs to be more education … if we can get (affirmative consent) in high school, I am totally for that.”
Eventually, Jackson envisions affirmative consent being taught in age-appropriate ways at all levels of the public education system, and plans on pushing to include tweens in the curriculum next year.
“That is my hope and expectation that next year we will bring a bill that starts addressing the junior high education as well,” she said.
Mitchell agrees with the need to address the issue of sexual violence with younger children.
“Even with young children there are ways to explain boundaries around one’s bodies, around one’s behavior that really are the set up for affirmative consent,” she said. “You have the right to say ‘I don’t like what you’re doing and I want you to stop.’ You don’t just get to touch someone’s desk or backpack without their permission. That has nothing to do with sex, but is the setup for affirmative consent.”
But critics of affirmative consent policies say that putting them into high schools sends a message that this code of conduct has legal standing, as opposed to being a social or school standard – a confusing and unfair message.
“I think that it’s misleading to students and teaches the wrong things about fairness and balance in the adjudication system,” said Joe Cohn, legislative and policy director of the Foundation for Individual Rights in Education. “What we would support is teaching students about how desirable it is to have better communication about their partner’s boundaries up front. That is not a bad thing. But teaching students that it is a requirement dramatically undermines student rights.”
Cohn said that affirmative consent rules are problematic in general in college because they create an unfair burden on the accused by leaning toward presuming guilt rather than innocence, and violate due process rights – affirmative consent charges are usually heard by some form of on-campus tribunal that has the power to sanction a student, but are conducted under campus rules, not state legal provisions. He expects civil legal challenges – which have already happened in multiple states – to increase as more schools implement the policies.
But for Jackson, teaching sexual partners how to give and receive consent to foster healthy relationships, rather than requiring an alleged victim to prove she gave an adamant “no”, is a cultural change that needs to happen to reduce the statistics when it comes to violence against women and girls. And, said Mitchell, giving kids a clear understanding of the expectations of “yes means yes” rules at younger ages will likely make it easier for both genders to navigate consent policies as young adults.
“Society has gone off the rails – sexual misconduct and abuse, teen dating violence … all of the media role modeling, it’s creating a monster. We need to roll that back as quickly and completely as we can,” she said. “We are social creatures. We learn behavior, what is appropriate and what is not appropriate … We need to as a society make sure that the rules are known.”