California Legislature Considering 'Yes Means Yes' Campus Rape Bill


If there’s one thing we know for certain about sexual assault at institutions of higher learning, it’s that far too many college administrators have no fucking clue what they’re doing. In far too many cases, schools’ sexual assault policies even lack a clear definition of what constitutes consent. Legislation currently being considered in California seeks to change that.

SB-987 was passed by the California Senate in May; this month, it will come before the State Assembly. The bill requires all schools that receive public funds for student financial assistance to set an “affirmative consent standard” for investigating and adjudicating sexual assault allegations — here defined as “an affirmative, conscious and voluntary agreement” by both parties to engage in sexual activity. In other words, rather than adjudicating sexual assault along the logic of “no means no,” California colleges will be required to adopt a standard of “yes means yes.”

According to the bill, “It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent.” Furthermore, “affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.” Also — sorry in advance, batshit rape apologists — the accused will be held responsible for sexual assault if they “knew or reasonably should have known that the complainant was unable to consent to the sexual activity” because of drug or alcohol use.

Of course, critics of the bill are entirely up in arms. Some have extrapolated grandiosely to the extent that they believe (or at least claim) that it will “micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms” or redefine all sex as rape. That is not what the bill will do. First of all, it’s based on White House recommendations, not, like, the writings of Andrea Dworkin. Secondly, it’s not about turning sexual intercourse into some kind of rigorous checklist that requires couples to stop and deliberate every time they try a new sex-thing. It’s about dispelling the harmful idea that silence or passivity — i.e., the absence of a no — is the same thing as consenting, which is both significant and necessary because some victims of assault freeze up entirely and some cannot say no because they’re incapacitated in some way.

As a person who has had sex once or twice before, I can assure you that it’s not all that difficult to discern whether what you’re doing is affirmative, conscious and voluntary. It’s also fairly easy to ask someone if they like whatever is happening if they seem uncomfortable. As Amanda Hess argues at Slate:

Are affirmative consent laws a good idea? If they are broad enough to include nonverbal cues, I think so. If we can admit that enthusiastic consent is often communicated in body language or knowing looks, then we must also accept that the lack of consent doesn’t always manifest itself in a shouted “no” or “stop,” either. It shouldn’t be the sole responsibility of the uninterested party to speak up during a sexual encounter. If you think it’s easy for a person to just say no, then why would it be so hard for his or her partner to just ask?

According to the AP, lawmakers have said that consent can be nonverbal. So, yeah, it seems that a lot of the criticism is (surprise!) unfounded. Furthermore, some schools — including Yale, Dartmouth and Berkeley — have successfully implemented affirmative consent policies at activists’ behest, so it’s not at all unprecedented. (When Harvard failed to institute a affirmative consent policy, student activists were “dismayed.”)

Denice Labertew of the California Coalition Against Sexual Assault believes that the vociferous response to the proposed bill shows that it has the potential to shift the extant paradigm. “There’s a lot of criticism around affirmative consent because it requires us to change the way we normally think about this,” she told the AP. Well, it’s about time. Failing to define consent clearly allows college administrations to avoid responsibility for mishandling sexual assault. It also does active harm to the physical and emotional health and safety of college students.

By now, it’s been acknowledged time and time again that the system is fucked. We need to change it radically — implementing short-term or gradual fixes is simply not enough to combat the metastasized institutional indifference and negligence that plague campuses nationwide. Hopefully, this measure passes and galvanizes more serious, and long overdue, changes.

Image via Wikipedia.

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