A controversial new law states that during a sexual encounter, only “yes” means “yes” — silence or the absence of “no” doesn’t constitute consent. Supporters say it’s a huge step forward, but critics worry it’s a mood-killing overreach into students’ bedrooms.
Rape is reportedly the most pervasive violent crime occurring on college campuses, especially now, during the “Red Zone” — the time between new student orientation and Thanksgiving break, when most of the sexual assaults against 37.4 percent of the female college-aged population happen. Freshman students — newly independent, meeting new people, exploring new things — are especially vulnerable.
When Gov. Jerry Brown signed the state’s “Yes Means Yes” bill into law on Sept. 28, California became the first state in the nation to clearly define the point at which people agree to have sex. Seeking to address how college campuses handle sexual assault allegations, it goes beyond the “no means no” standard that has been criticized as contributing to “blurred lines” of consent in sexual assault cases.
“’Affirmative consent,’” the law states, “means affirmative, conscious, and voluntary agreement to engage in sexual activity.”
Further, it states that “the existence of a dating relationship” or a history of sexual relations does not qualify as “an indicator of consent.” And, perhaps most importantly for the college set it targets, the law clarifies that consent can not be given by someone who is sleeping or incapacitated by drugs or alcohol.
To continue to receive state funds for student financial assistance, the state’s colleges and universities are now required to implement policies and protocols covering 13 issues that can arise in cases of not just sexual assault, but also domestic violence and stalking.
These policies include training campus officials to appropriately respond to and investigate sexual assault allegations, offer sexual assault and domestic abuse counseling, and protect the privacy of complainants.
Ahead of the vote in the Legislature, state Sen. Kevin de Leon pushed the bill as one that would benefit both men and women on college campuses.
“With this measure, we will lead the nation in bringing standards and protocols across the board so we can create an environment that’s healthy, that’s conducive for all students, not just for women, but for young men as well too, so young men can develop healthy patterns and boundaries as they age with the opposite sex,” de Leon said, as reported by USA Today.
The bill passed the state’s Legislature in August with broad support. Victims’ advocates are applauding the move as a huge step forward in confronting sexual violence, especially in terms of where the burden of proof has been shifted — now it is on the accused, rather than the accuser. A person making accusations of sexual violence no longer needs to prove that he or she said no, but the person being accused has to prove that the one making the allegations said yes.
Haley Walrath, a Santa Barbara City College student, says she feels like she would now be more likely to report an incident of sexual assault, since it would be on her attacker to prove that she had consented.
“I feel like many girls are afraid of saying anything just because all of the instances in which other girls said something, and were called liars because they couldn’t prove that they didn’t consent,” she told MintPress News.
Yet the new law isn’t without its critics, many of whom criticize it as an overreach that puts too great a burden on the accused and that this level of consent could be difficult to prove in court. In an August editorial, the National Coalition for Men, based on San Diego, described the bill as the “campus rape crusade bill,” which “presumes the veracity of accusers (a.k.a. ‘survivors’) and likewise presumes the guilt of accused (virtually all men).”
Some have also noted that what might qualify as consent remains unclear. What can count as an “affirmative unambiguous and conscious decision by each participant to engage in mutually agreed-upon sexual activity?” Would passionately returning a kiss qualify? What about verbal cues that don’t include the word “yes” but otherwise indicate pleasure or enjoyment and, thus, a desire to proceed? According to the bill’s co-author, Assemblywoman Bonnie Lowenthal, affirmative consent means an individual “must say ‘yes.’”
Yet nonverbal cues tend to be part of consensual sexual encounters, Cathy Young writes for Time magazine, and so, “as a legal standard, nonverbal affirmative consent leaves campus tribunals in the position of trying to answer murky and confusing questions.”
Indeed, when asked about how an innocent person may prove that sexual assault allegations against him or her are false, Lowenthal said, “Your guess is as good as mine. I think it’s a legal issue. Like any legal issue, that goes to court.”
Others still are worried that making sure consent is “ongoing throughout a sexual activity” could make that activity, in fact, less sexy. Those pauses throughout an encounter to check in that both partners are on the same page and still actively enjoying — not just not saying no to — what’s happening, they say, kill the mood.
Writing for New York magazine, Ann Friedman says, “I beg to differ. Confirming consent leads to much hotter sex.” And she’s not the only one: The language of the new California law closely echoes the message of enthusiastic consent that Jaclyn Friedman has been preaching for the past several years.
“It’s one of the few things you can do to make your sex life better and make the world a safer place,” Jaclyn Friedman told MintPress.
“‘No means no’ is not enough. Real consent only happens when you’re making sure your partner is enjoying whatever’s happening — not just not objecting, but actively enjoying.”
Jaclyn Friedman co-edited the 2009 essay collection, “Yes Means Yes: Visions of Female Sexual Power and a World Without Rape,” and tours college campuses, offering presentations focused on enthusiastic consent to incoming students. She noted that in 2009, when she asked an audience to raise their hands if they’d heard of enthusiastic consent, very few hands were raised, but now “more than half raise their hands.”
“There are the rape myths of, ‘She was asking for it,’ ‘She didn’t object,’” or the notion that women are meant to be passive in sexual situations while men are more active, she says. “Enthusiastic consent clears up that gray area.”
Further, she says, it shifts the conversation to one that focuses on people’s responsibility not to rape, rather than warning people not to be victims. At its core, she says, the concept of enthusiastic consent is logical, and the biggest criticism she hears is that “it’s hard to do.”
While it can be difficult to get people to change the way they frame their ideas about sex, she said, “Most people want to be good people, they want to have fun without hurting anybody, so most people are pretty receptive [to the concept of enthusiastic consent].”
Ann Friedman argues that the new law actually “makes life easier … because it creates a compelling reason for both parties to speak up and talk about what they like.”
“In essence, the new law forces universities — and the rest of us — to acknowledge that women like sex. Especially sex with a partner who wants to talk about what turns them on.”
Over 37 percent of women report having been raped sometime between the college-age years of 18 and 24, according to the CDC. The CDC also reports that one in five women and one in 71 men in the United States have been raped in their lifetimes.
These figures may not tell the entire story, either, since less than 5 percent of college rape victims report their attacks.
These are not numbers that can be ignored, yet colleges and universities have come under scrutiny this year for their poor handling of rape and sexual assault allegations by students. Specifically, the Department of Education announced that it was investigating 55 colleges and universities, as of May 1, for possible violations related to Title IX – the federal law that guarantees female students the same access to sports as their male counterparts, but also regulates how schools are supposed to handle cases of sexual violence.
According to a July Senate subcommittee report requested by Missouri Sen. Claire McCaskill, more than 40 percent of schools in a survey of 440 four-year colleges and universities “have not conducted a single investigation in the past five years,” and over 20 percent have conducted fewer investigations than the number of incidents they reported to the DOE.
The report also states: “More than 20% of institutions in the national sample provide no sexual assault response training at all for members of their faculty and staff. More than 30% of schools do not provide any sexual assault training for students.”
While it’s meant to eliminate gender discrimination among schools receiving federal funds, Title IX is also increasingly being cited by students who say their schools failed to protect them, especially in terms of investigating claims of sexual assault and rape. Failure to comply can result in a loss of funding, and in some cases, a federal investigation.
Part of the problem with Title IX, critics say, is that it essentially makes college and university staff — not law enforcement — responsible for investigating and adjudicating allegations of sexual violence. And because Title IX schools were warned by the DOE’s Office for Civil Rights in 2011 that failure to aggressively pursue sexual violence allegations could constitute a Title IX violation — and thus, a loss of funding and — some schools, like the University of North Carolina, have scrambled to hire staff focused solely on ensuring Title IX compliance.
“As a result of this intervention by the DOE’s office of civil rights (OCR), there are conduct boards composed of English professors, librarians, and math majors across the country determining guilt for what is generally considered the second most serious crime known to man,” Caroline Kitchens wrote for the National Review in May.
One of the universities currently being investigated for possible Title IX violations is the University of Virginia. The university unveiled two new campaigns to address sexual violence on and around campus — Not On Our Grounds and Hoo’s Got Your Back. Both are aimed at creating awareness about the importance of being “an active bystander.”
Associate Dean of Students Nicole Eramo explained to MintPress that the Hoo’s Got Your Back campaign focuses on the three D’s: Direct (“Checking in with someone, asking if they’re Ok.”); Delegate (“Call 911. Get others involved when you’re not comfortable doing it yourself.”); Distract (“Use something else to get someone out of a situation.”) With this campaign and Not On Our Grounds, the university is hoping to encourage students to step in, which can hopefully stop an incident of sexual violence from occurring at all.
Eramo says students were vocal about wanting campaigns to raise awareness about sexual violence, noting that these recent campaigns have been met “very positively.” Yet when MintPress attempted to reach out to ask more questions about the campaigns being organized not long after the Title IX investigations were announced and whether they’ve been effective so far this semester, Eramo did not return our calls.
Similarly, Emerson College, another school on the DOE’s investigation list and one that featured a talk on “enthusiastic consent” during this fall’s new student orientation, declined to comment on anything for this story, including why it chose to share this message with incoming students and what resources are available to victims of sexual violence.