Inside Higher Ed. June 9, 2014.
A bill that's passed the California Senate with the backing of a powerful lawmaker would require many of California's 2.3 million college students to make sure they have a "yes" -- not just not a "no" -- before they have sex.
The proposal would shift the burden of proof in campus sexual assault cases in which the accused cites consent as the defense to those accused, rather than those making the allegations.
California's public colleges and most of the private colleges would be required to adopt a sexual assault policy that mandates students receive "affirmative consent" from those with whom they seek to have sex or any sexual activity.
Specifically, the bill would require "an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity." Getting consent is "the responsibility of the person who wants to engage in initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity." The consent has to be "ongoing" throughout any encounter.
That is a good thing, say victims' rights advocates. Female college students who make allegations are too often asked by college officials to account for their own actions, including what they were wearing and whether they tried hard enough to stop a sexual encounter.
Others question whether the policy is an unworkable attempt at government overreach.
How does a person prove they receive consent "shy of having it videotaped," said Joe Cohn, the legislative policy director at the Foundation for Individual Rights in Education.
A similar policy at Antioch College in the 1990s was widely mocked and seen at the time as political correctness run amok.
Two decades later, with campus sexual assault a major national issue, affirmative consent is clearly back. The California bill is sponsored by Senator Kevin de Leόn, who is expected to be the future head of the state Senate. Other colleges also already have similar policies, at least on paper. The bill would not affect how sexual assault cases are handled by the courts, only by college officials; many sexual assault allegations are only made to colleges and not to court systems.
"Obviously, there is a problem,” De León said in a recent statement. “[Senate Bill] 967 will change the equation so the system is not stacked against survivors by establishing an affirmative consent policy to make it clear that only ‘yes’ means ‘yes.' ”
California's private colleges have some reservations about the bill. The Association of Independent California Colleges and Universities, which says its supports the intent of the bill is lobbying to amend it.
The association wants each of its members to be able to have their own affirmative consent standards because a non-uniform standard "permits for the evolution and improvement of the definition of consent over time."
The California State University System updated its policies last week to include language that mirrors the language of the bill, which a spokesman said the system supports.
According to the new Cal State policy, "Consent must be voluntary, and given without coercion, force, threats, or intimidation. Consent requires positive cooperation in a particular sexual act, or expression of
intent to engage in that sexual act through the exercise of free will."
The University of California's existing policies also defines consent as an "affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity."
But it's not clear where the UC system and the community college system in California stand on the bill. Spokesmen for both did not respond to multiple requests for comment Friday.
The private college association also wants to make sure that the college's disciplinary hearings are "fair and equitable to both the complaining student and the accused student."
How the law would actually work is the subject of a good deal of controversy, though some of it is merely confusion. The law does not, for instance, require play-by-play verbal consent to each act. Nor does it require written consent, as had been suggested by some critical commentary.
But Cohn, of the Foundation for Individual Rights in Education, said the bill is inherently “reversing” the traditional presumption of innocence for those accused because the accused now have to prove they did get permission to be found not guilty -- at least in college disciplinary hearings.
“That’s a pretty dramatic and important shift,” he said.
Denice Labertew, the director of advocacy services at the California Coalition Against Sexual Assault, said that shift was a good one. She said the bill would remove the "victim blame" to which those alleging sexual assault are often subjected. The bill also creates a "clearer standard" because instead of the alleged victim being required to prove they didn't want to engage in sexual activity, the alleged perpetrator would be required to prove his partner did want to.
“The survivors [of sexual assault] are going to be positively affected because they are going to be going into a system that no longer asks them why they didn’t do something,” Labertew said.
The bill, as currently written, puts the onus on getting consent from the "initiating" partner. That could also cause confusion.
“That’s going to be a question – who initiated the sexual activity – it’s not always clear who initiated the sexual activity,” said Dan Subotnik, a professor of law at Touro University Law School who has written critically about affirmative consent laws.