On August 28, the California State Senate took a step to clear up convoluted college rape policy. Over the past few months, colleges nationwide have been criticized for mishandling sexual violence complaints. As a result, the White House began investigating 55 colleges and universities, several of which are California state schools, to ensure an appropriate response to complaints of sexual assault under Title IX of the Education Amendments of 1972. Title IX prohibits discrimination based on sex in educational programs, including sexual harassment that is so offensive it interferes with educational capacity.
In an attempt to address growing concerns, the California State Senate unanimously passed SB967: The United States’ first affirmative consent bill. SB967 is commonly referred to as “yes means yes.” The phrase change from the age-old health-class bumper sticker definition of consent, “no means no,” to “yes means yes” reflects efforts to reduce the gray area of what exactly sexual assault constitutes.
According to the new 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. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.” If this bill is signed into law by California governor Gerry Brown, who has until the end of September to sign it, state colleges and universities in California must have this definition of rape in their codes in order to continue receiving state funds.
The bill’s specificity intends to clarify instances of doubt and blame in sexual assault cases. With issues as intimate as sexual assault, it is often difficult to gauge the boundaries and circumstances of foul play. Demanding an explicit “yes” helps address the ambiguity of all responses between “yes” and “no.” The bill, however, cannot cover instances of contradicting stories from victim and accused perpetrator. If the victim and accused rapist report clashing stories, which one does the college believe? Investigating the evidence requires uncovering layers of sensitive information that may bring the university negative publicity. It is therefore simpler for the school to shrug and say “sorry, no proof, no punishment,” and brush these critical issues under the rug.
Under the new bill, the hope is that stories will clash less if both parties involved have a clear understanding of what consent is. No longer will administrations have to interpret a victim’s lack of a “no.” Administrations handling rape accusations will no longer have to determine whether by allowing a sexual act to continue without vocalizing lack of consent the victim is signaling that the act is okay or is merely paralyzed by fear and enduring the act.
The California law, if passed, would not spark the first college adaptations of affirmative consent—many schools already define consensual sex in terms of affirmation in their student codes, and many even require verbal affirmations of consent. However, this will be the first legal standard enforcing that colleges define consent in this manner and investigate cases accordingly.
While this bill provides a concrete and thorough definition of consent as “yes,” it leaves a big question to be addressed: What defines “yes?” Many defenders of the bill and proponents of the “yes means yes” definition of consent are quick to assure those a bit more skeptical of this approach that in order for sex to be defined as consensual under the definition of affirmative consent, no “yes” need be verbalized. Most consensual sexual interactions already involve affirmative nonverbal cues, such as kissing back and showing active engagement in the activity. These physical reciprocations, however, may also be responses to situational pressure.
Some colleges that have already enacted affirmative consent codes have set different precedents. Swarthmore College’s code, for instance, allows nonverbal communication to signify consent unless a request for consent is verbalized, in which case it must be answered with a verbal response. No physical response, no matter how seemingly clear, can signal consent—if intercourse proceeds without a spoken “yes,” the act is now rape. While the text of the bill does not specify whether affirmative consent must be verbal, one of its co-authors Bonnie Lowenhal has stated that indeed it must. This, coupled with the fact that under the bill the accused must have taken reasonable steps to “ascertain whether the complainant affirmatively consented,” raises concerns about the feasibility of the bill. Many college students find it unrealistic to periodically check in and obtain verbal “yeses” during intercourse, and opponents of the bill question whether the aforementioned requirement will render the accused guilty until proven innocent.
It is important to note that while controversy over the bill centers around the shift of defining consent from the lack of a no to the presence of a yes, it was not always a given for lack of consent to be in the definition of rape at all. It took until 2003 when Bulgarian authorities dropped a rape case due to lack of proof of physical force for the European Court of Human Rights to set the precedent of defining rape as sex without consent. In Europe, most countries still define rape to some degree in regards to physical force, not lack of consent.
Considering that to many, rape is still synonymous with physically forced and violent sex, it is remarkable that the debate about college consent codes is simply between the no-means-no and yes-means-yes mentalities. While SB967 has obvious good intentions for reducing college rape incidences and college mishandlings of rape cases, it addresses many problems and confusions with existing sexual assault codes only to open up new ones. We now know explicitly that consent is defined by yes, but what defines yes? A passionate kiss or the vocalization of the word? The burden of proof is somewhat shifted from the victim to the accused, who, under the code enforced by this law, would have to show that sufficient steps were taken to secure consent.
Often, however, the line between victim and accused is blurry, for both parties may have made regrettable decisions. The victim-accused polarity neglects the nuances of sensitive scenarios and may hinder thorough and fair investigation into the incident. Furthermore, despite policy developments, sexual assault cases will often boil down to one party’s account over the other: All that may be changed is which story carries more weight. In many cases, colleges will still ultimately have to make the same judgment call: Is it worse to risk punishing an innocent student for invalid rape charges, or to let a rapist remain on campus and add to a victim’s emotional trauma?