Silence Is Not Sexual Consent: The California Contract

* One in 4 college-aged women report experiences that meet the legal definitions of rape or attempted rape. 

* One in 5 college women are raped during their college years. 

* One in 12 college men admitted to committing acts that met the legal definition of rape.

* More than one in 5 men report “becoming so sexually aroused that they could not stop themselves from having sex,” even though the woman did not consent.

(National Statistics. New York University Student Health Center. 2010)

Gov. Jerry Brown has signed a bill into law that makes California the first in the nation to have a clear definition of when people agree to sex. The law goes further than the common "no means no" standard, which has been blamed for bringing ambiguity into investigations of sexual assault cases.
The "Yes Means Yes" bill, officially known as  California SB 967, seeks to create more institutional protections for college students who may be sexually assaulted by their peers. Authored by state senators Kevin de Leon and Hannah-Beth Jackson, SB 967 sets the standard for consent to sex a bit higher than some colleges have in the past. And that standard is "affirmative consent."

The consent of affirmative consent is best understood by the bill's slogan: "yes means yes." The old "no means no" doesn't create a very high burden on would be sexual assaulters to ascertain whether their partners' silence, intoxicated state, or lack of resistance is really tantamount to a "yes." And with the very serious charge of rape being a possibility for sex without consent, this is not a situation to trifle with. With only a "yes" (or each partner affirmatively consenting), can many of their sexual assault fears be silenced.

The new law seeks both to improve how universities handle rape and sexual assault accusations and to clarify the standards, requiring an "affirmative consent" and stating that consent can't be given if someone is asleep or incapacitated by drugs or alcohol.

"Lack of protest or resistance does not mean consent," the law states, "nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time."

The "affirmative consent" standard also would not allow accused rapists to claim that an intoxicated victim consented or that the accused was too intoxicated to confirm consent. For college students, this may mean a sobering new reality about drunken sex.

(Brett Snider, Esq. "Calif. 'Yes Means Yes' Sexual Assault Bill Awaits Gov.'s Signature."

 Law and Daily Life. August 30, 2014")

The bill applies to all California post-secondary schools, public and private, that receive state money for student financial aid. The California State University and University of California systems supported the legislation after adopting similar consent standards this year.

Before the legislation was approved, the National Coalition for Men, a non-profit group based in San Diego, posted on its website an article urging Brown to veto the legislation.

"It is tragically clear that this campus rape crusade bill presumes the veracity of accusers (a.k.a. 'survivors') and likewise presumes the guilt of accused (virtually all men). This is nice for the accusers – both false accusers as well as true accusers — but what about the due process rights of the accused?'' wrote Gordon Finley, an adviser to the group and professor emeritus of psychology at Florida International University.

(William M. Welch. "California Adopts 'Yes Means Yes' Law."  

USA Today. September 29, 2014)

Here is the language of the law:

SB-967

67386.

 (a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:

(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. 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. 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.

(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.

(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.

(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

(4) A policy that, in the evaluation of complaints in the disciplinary process, 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:

(A) The complainant was asleep or unconscious.

(B) 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.

(C) The complainant was unable to communicate due to a mental or physical condition.

I understand the terrible problem of sexual assault on campus. And the intent of this law is good. It will hopefully change how states and universities handle rape allegations. The legislation should begin a needed paradigm shift in how college campuses in California prevent and investigate sexual assaults.

However, I think some fuzziness is apparent ...

What levels of intoxication and/or recklessness apply? Is anyone the least bit under the influence subject to strict interpretation of drunkenness? And, reckless is a hallmark of college-age social situations. The Animal House mentality is a reality that must be tackled.

Does this law apply to all "sexual activity"? And, if so, what is defined as such? Quite a wide range does exist from oral sex to copulation.

In the heat of the moment what does “affirmative consent” actually require as "affirmative, conscious, and voluntary agreement to engage in sexual activity"? Is physical response itself "affirmative consent," or does the consent have to be verbal? Although lawmakers say consent can be nonverbal, and universities with similar policies have outlined examples of such consent as a nod of the head or moving in closer to the person, what applies to actual legal consent remains vague.

If the "fact of a dating relationship between the persons involved, or the fact of past sexual relations between persons is never assumed to be an element of consent," does each new sexual encounter require new consent? Does this also apply to married couples and those who engage in different, aggressive foreplay and/or fantasy?

Does each level of sexual advancement require a response in order for the sexual engagement to continue? The law says "it can be revoked at any time." So, does that mean lingering and being aware of each stage of the process? You know, like the aggressor getting the OK to go on to "second base," on to "third base," and finally to "home"?

I also assume this law applies to unwanted mutual gay sexual activity. This type of contact may prove more difficult as to defining the roles of aggressor and complainant. I can't imagine how one may determine fault in many of these sexual intrusions.

Considering the law, here is a loud and clear message I believe people should understand: taking any kind of chance that puts you in the role of a sexually aggressive partner is risky. That said, now a partner does not have to say "no" to sexual advances. The responsibility to have sex requires a "yes" between both parties involved, not just an intuitive notion of consent but a clear and direct response. Considering the statistics above, this is a step forward. Thorny? Of course, but the aim is true.

This legal contract of love does seems rather unromantic in many ways. Shakespeare may be turning over in his grave. 

"Love is a smoke raised with the fume of sighs,
Being purged, a fire sparkling in lovers' eyes,
Being vexed, a sea nourished with lovers' tears.
What is it else? A madness most discreet,
A choking gall and a preserving sweet."

-- William Shakespeare, "Romeo and Juliet | Act 1, Scene 1"
 

Love is a smoke raised with the fume of sighs,
Being purged, a fire sparkling in lovers' eyes,
Being vexed, a sea nourished with lovers' tears.
What is it else? A madness most discreet,
A choking gall and a preserving sweet.
-- William Shakespeare, "Romeo and Juliet | Act 1, Scene 1" - See more at: http://www.romancestuck.com/quotes/shakespeare-quotes.htm#sthash.oETFCxlx.dpu