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Sept. 19, 2014

Yes means yes bill passed in California

by Neida Mbuia Joao, Online Op/Ed Editor
On Aug. 28, California lawmakers unanimously passed Senate Bill 967 or SB-967, a bill to help redefine the meaning of consent on college campuses. The bill, which is colloquially being called a "yes means yes" law, requires colleges to adopt affirmative consent into their policies about sexual assault. Though this bill is an important first step in redefining the way that consent is taught throughout the U.S., California governor Jerry Brown has yet to sign it or even comment on the issue. Brown has until the end of the month to sign the bill, and, seeing as reported sexual assaults at colleges have risen 79 percent in the past decade, he most definitely should.
Enthusiastic consent is the only kind of consent. Courtesy of Southern Maine Sexual Assault Response Services
Enthusiastic consent is the only kind of consent.

Senate Bill 967 is essentially a bill about changing language. It calls for all colleges and universities in California with students who receive financial aid to define consent as "an affirmative, conscious, and voluntary agreement to engage in sexual activity." It also says that affirmative consent can be revoked at any time and cannot be presumed if a previous romantic or sexual relationship existed between the two people or if one partner is intoxicated, unconscious, or silent. In doing, so it emphasizes the perpetrator's role in committing sexual assault, rather than blaming the victim for the assault. If passed, it would become the country's first affirmative consent law at a time when college campuses need it most.

Recently, colleges have been getting more scrutiny for their handling—or mishandling—of on-campus sexual assault cases. Right now 76 colleges are under a Title IX federal investigation concerning management of sexual assault reports. In July, the office of Senator Claire McCaskill (D-Mo.) released a survey that revealed staggering information about how colleges handle rape cases. Additionally, students at Columbia University have filed federal complaints against the school regarding its "systematic mishandling of assault claims and mistreatment of victims." One such student is Emma Sulkcowicz, whose senior thesis, "Carry That Weight," is a performance art piece that features her carrying the mattress upon which she was raped until the school expels her attacker or until he decides to leave. Sulkowicz began the piece after Columbia ruled her rapist "not responsible" in her assault and in those of two other girls.

Federal law mandates that all colleges and universities conduct an investigation into every sexual assault that is reported to them. However, McCaskill's survey of 440 higher-education institutions revealed that 21 percent of private colleges failed to comply, with some having as much as seven times more reports than investigations. It also revealed that 41 percent of the schools had not conducted a sexual assault investigation in five years. Each school must conduct an adjudication hearing to determine a student's guilt, but 33 percent of schools did not provide adjudication training to the people hearing claims. Frequently, as in Emma Sulkowicz's case, this lack of knowledge on the part of adjudicators led to victim blaming.
Consent advocates are finding new, innovative ways to get the word out about consent. Courtesy of Think Progress
Consent advocates are finding new, innovative ways to get the word out about consent.

More important than the problem of sexual assault on college campuses is the fact that many young people do not understand consent. A survey done by Amnesty International UK found that 37 percent of respondents blamed a woman for her rape if she did not clearly say no. Also, a 2010 survey conducted by the Havens found that 33 percent of young men did not think that having sex with someone who said no was rape.

If signed, California's "yes means yes" law would kill both birds with one stone. It would put emphasis on the perpetrator, rather than the victim of the sexual assault. It would also make sure that both parties are responsible for confirming consent, rather than having the burden lie solely on one person, in most cases the woman.

The bill is not perfect. It will in no way guarantee an end to sexual assault on college campuses, or ensure that college officials rule fairly in sexual violence cases. In truth, we need more than a law defining consent to create considerable change in the amounts of sexual assaults occurring on college campuses. But it's absolutely essential for Brown to sign this bill into law because it is a critical first step, one that will open up a dialogue to raise awareness about what does and doesn't constitute rape.



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  • Concerned Reader on September 22, 2014 at 1:34 AM
    I would like to take a minute to look at a side of this bill that was not very well addressed in this article but before I do, I would like to make a few things clear. I strongly believe that there is a serious problem with sexual assaults occurring at increasingly high levels on college campuses across the country. I believe that steps must be taken by college administrators as well as government officials to address this problem. However, I think that this bill is a very rash attempt to solve an issue that is much more complicated than is made clear in this article or in the bill itself.

    For one, while consent is certainly an essential part of any sexual encounter, I think that I speak for a lot of people when I say that it is very rare to have express, verbal consent during or before sex. It simply does not happen on a consistent basis. With that in mind, does that make me and the majority of my sexually active college classmates rapists? It also brings up the question that if neither one of the partners gave verbal consent, then how can you determine who is the aggressor and who is the victim? Is the woman inherently the victim? Because that sets up an entirely new set of issues where we set a precedent saying that men cannot be raped or sexually assaulted.

    The final point that I found an issue with is the section of the bill which denotes that if either partner is under the influence of alcohol or drugs, then consent cannot be given. This section once again would seem to categorize a large proportion of college students, both men and women, as sexual offenders because the reality is that sex while under the influence of alcohol is extremely prevalent on college campuses. It also brings up another issue where if both people are drunk, then how can either give consent.

    That being said, I do think that there are a lot of positive changes that could come out of this bill as well as a greater dedication to the prevention of sexual assault on campuses nationwide. But by taking this blanket approach to solving the issue, California is setting a series of confusing and dangerous precedents that instead of addressing the problem, create a whole new set of problems.
  • Camille on October 3, 2014 at 9:22 PM
    First off: Excellent article, Neida! Insightful, thoughtful, and well-written, as ever.

    To "Concerned Reader": Your concerns are valid ones, but I believe that many of them are addressed by the bill and its context. Per your first point: the bill accepts nonverbal consent as consent, so long as the defendant "[took] reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented." That's certainly subjective, but I would actually argue that it is more likely to result in overly broad definitions of "reasonable steps," rather than overly narrow. Most college disciplinary panels are probably not going to say that the only reasonable way to ascertain consent is to explicitly and continually ask "Do you consent to this?" I think they're more likely to say that listening for a no and continuing in its absence is a reasonable step.

    Your second two points seem related to each other. In both cases, you bring up a scenario in which both participants would be raping each other (i.e. neither partner consented or both partners are intoxicated). First off, it is clearly nonsensical to say that a sexual encounter in which neither partner consented to sexual activity could proceed (absent the an outside person forcing one partner to rape the other, which is not the scenario you present.) You seem to recognize this absurdity and use it to call the bill absurd; however, I think that you have the wrong end of the stick. The seeming absurdity is the result of a misunderstanding of the bill's definition of affirmative consent, which I addressed above. When you understand that affirmative consent can be nonverbal, you understand that the partner instigating sexual activity, whether male or female, has given affirmative consent.

    Could the gender role assumptions of a prejudiced disciplinary committee cause misinterpretations of consent? Absolutely. But the same is true under current policy. A male student alleging rape by a female student today is extraordinarily unlikely to be taken seriously. That is wrong, and it needs to change. But the plight of male rape victims will not be worsened by the passage of Yes Means Yes.

    Your final point of concern addressed alcohol. I agree with you that many students have sexual relations under the influence of alcohol and other intoxicants, and that it is not, for the most part, rape. However, I again refer you to the bill text, which states "it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances: ... The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity."

    A careful reading of this language reveals that consent is only invalid if the complainant was so intoxicated as to be unable to "understand the fact, nature, or extent of the sexual activity." I think we can both agree that people who are slightly buzzed can understand sex they are engaging in or agreeing to engage in, and equally, I think we can agree that someone who cannot understand the same is unable to give consent.

    I applaud you for your reasoned and thoughtful critique of the bill. However, I think parts of it are based on misinformation; I hope my words above helped clear those parts up. All in all, I too think that this bill will create positive changes in California and nationwide. I also hope that the attitudes some (not you!) are revealing in their discussion of the Yes Means Yes bill will lead to a discussion of the rampant rape culture in America today and its intersection with prevailing misogyny.

    Personally, I say yes to Yes Means Yes.

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