California is poised to become the first state to require all colleges that receive state funds to strengthen their policies on sexual assault by mandating that students give active consent to one another before all sexual activity, either by saying “yes” to a spoken query or by signaling assent in a nonverbal way.
If Gov. Jerry Brown signs the measure passed by the California Legislature, the new standards would apply both to public universities in the state—many of which have already adopted such rules—and to the many private colleges where students receive state grants. The bill’s supporters hope that it will not only reduce sexual assaults but also encourage more victims, who often fear they will not be believed, to report sexual violence on campuses.
The legislation comes at a time when the federal Education Department has been investigating sexual assault on 55 campuses nationwide and prodding all colleges to do more to stop it. The California rules—known as affirmative consent, but popularly called “yes means yes”—would replace a standard in which no active agreement for sexual activity is required, but saying “no” is considered a threshold.
Critics of the new policies accuse the colleges and lawmakers of trying to micromanage sex and imposing a standard of consent so vague that it would be difficult to know what constituted a “yes.”
The California legislation includes no clear definition of affirmative consent, which presumably could take many forms. And on campuses where such rules have been established without prodding from the state, some students are bewildered.
At the University of California, Los Angeles, this month’s freshman orientation included a one-hour session on the policy, which took effect this spring. Students were told that consent had to be informed and voluntary, and could be revoked at any moment.
At the session, new students were quizzed on ways they could obtain consent from a partner. From the audience, they shouted suggestions: Ask “Are you O.K.?” every few minutes, or go in only partway for a kiss and let your partner meet you halfway.
“I’m more confused than I was at the beginning—it’s scary,” Harishwer Balasubramani, an 18-year-old from Pittsburgh, said after the session. “You don’t grow up going in for a kiss and pausing to ask if you can kiss them or not. But looking at all these rules, you just have to be really cautious and make sure you communicate.”
Roxanne Neal, the university official who led the workshop, told students they were right to proceed cautiously in any sexual encounter, especially if they had been drinking or did not know their partner well.
“If you’re the initiator, you need to get consent,” she said. “You need to be asking, ‘Are you O.K.?’ You’re the one at risk of committing sexual violence or sexual assault. If your partner goes silent at any point, just stop. It’s better to save it for another night than to risk something.”
The new policy repudiates the old and widely held expectation that a person’s failure to protest a particular act can be taken as consent. Advocates for assault victims hail the California legislation as an important step in educating people about what consent means.
“This is a paradigm shift, no question about it,” said Kevin de León, the Democratic California state senator who sponsored the bill. “For too long, the deck has been stacked against young women, when they’ve had to prove that ‘no’ meant ‘no.’ We’re hoping this is a model for the rest of the country.”
Exactly how these measures would change enforcement of the rules is less clear. As always, cases are likely to come down to one person’s word against another’s. In effect, rather than saying “she didn’t object,” the accused could say “she gave consent.” But officials at U.C.L.A. said the new policy had already made it easier to find students responsible for an alleged assault than it had been in the past.
Affirmative consent began two decades ago, when Antioch College in Ohio required verbal consent for all students who planned to engage in sexual activity. At the time, the policy drew widespread mockery, including a “Saturday Night Live” sketch featuring a game show set at the college called “Is It Date Rape?”
But recently, amid pressure from the Education Department, institutions like Dartmouth, Yale, Claremont McKenna and all public universities in California have overhauled old policies in favor of ones that require enthusiastic consent before sexual activity can begin.
“Clearly, there is a move toward more of an affirmative consent standard, and that’s probably appropriate,” said Ada Meloy, general counsel for the American Council on Education, the biggest association of public and private colleges and universities. But she added: “To impose by statute a single requirement on all institutions seems questionable, given the wide variety of institutions out there. Most institutions are trying to revise their policies to comply with the federal regulations, and to throw on top of that a state mandate seems unnecessary.”
Unlike Antioch, most colleges do not require consent to be verbal. As a result, the “yes means yes” policies have posed a new question in sexual assault cases: What counts as “yes”?
Dianne Klein, a spokeswoman for the University of California System, which adopted a new affirmative consent policy in March, said a “yes” could be a vigorous head nod, or active engagement in the sexual activity, as long as it was “unambiguous and voluntary.”
“There is no magic word,” she said.
Given this ambiguity, however, critics have argued that the rules place an unreasonable burden on someone accused of sexual assault, who must now show that consent was given.
“This bill is dangerous,” said Anne D. Neal, the president of the American Council of Trustees and Alumni, a nonprofit that works on issues of academic freedom. “Sexual assault is a crime, and when a crime occurs, it is imperative that the victim go to law enforcement so that appropriate action can be taken. An in-between that ignores constitutional protections, minimizes the standard of proof, is something that will do great harm to the accused.”
Most victims never go to the police, in part because sexual assault cases are often difficult to prosecute. One example is Savannah Badalich, a 21-year-old senior at U.C.L.A. who woke up one night her sophomore year to find a friend sexually assaulting her. She decided not to report the attack, afraid that no one would believe her.
“It would have been his credibility against mine,” she said.
She has since become an advocate for survivors of sexual assault, and said that the affirmative consent standard would make it easier for victims to come forward.
The bill awaiting Governor Brown’s signature would offer a host of other protections: It would require institutions to offer on-campus advocates for victims; prevent victims and witnesses who come forward from being punished for under-age drinking; and require disciplinary committees to be trained on how to deal with sexual assault cases. All institutions would be required to teach incoming freshmen about sexual assault and consent during orientation.
After her orientation session at U.C.L.A., Maira Tafolla, 17, said she would think twice before just about any sexual activity — but not before leaning in for a kiss. “That’s not committing sexual assault,” she said. “You just have to kind of go for it.”
She paused, then added, “But beyond kissing, I would ask.”
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