California Governor Jerry Brown on Sunday signed a law requiring all state colleges to adopt a 'yes means yes' policy of unambiguous, affirmative consent by students engaged in sexual activity, marking a paradigm shift in how colleges and universities deal with sexual assaults. The law would apply to all public colleges and other institutions that receive state funds for student aid.
The bill, which California lawmakers approved last month, also requires training for faculty reviewing complaints so that victims are not asked inappropriate questions during the investigation process, and it mandates access to counseling, health care services and other resources for victims. In addition, schools will now be required to give consent and sexual assault awareness trainings at orientation.
The legislation says silence or lack of resistance does not constitute consent (though non-verbal consent, such as a head nod, can be given); under the bill, someone who is drunk, drugged, unconscious or asleep cannot grant consent. It specifies that "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." Supporters say the law shifts the burden of proof from the alleged victim to the accused.
“Every student deserves a learning environment that is safe and healthy,” State Senator Kevin de León, who authored the bill, said in a statement Sunday night. “The state of California will not allow schools to sweep rape cases under the rug. We’ve shifted the conversation regarding sexual assault to one of prevention, justice, and healing.”
At a time when rape and sexual assault on campus has been called a national "epidemic," many women's advocacy and college sexual assault survivor groups endorsed the new law. Additionally, the University of California and California State University systems supported the legislation. More than 50 colleges and universities nationwide, including a handful in California, are under federal investigation for their handling of sexual assault allegations, and the White House recently launched "It's On Us," an initiative aimed at combating rape and domestic violence at universities. Studies suggest that one in five women is sexually assaulted in college.
But not everyone thinks 'yes means yes' is the best approach to solving campus rape. For one thing, critics ranging from the Los Angeles Times editorial board to the campus civil liberties group known as FIRE (Foundation for Individual Rights in Education) have raised questions about whether the law is "enforceable" or legally workable—not to mention the potentially troubling implications of having the government, and college tribunals, regulate sexual interaction.
"[I]nstead of recognizing that college administrators are unqualified to serve as investigators, finders of fact, and sentencing authorities in campus sexual assault cases, SB 967 entrusts them with still greater responsibility," FIRE said in a statement earlier this year. "Injustice will inevitably be the result."
The statement added:
Should SB 967 become law, there will be no practical, fair, or consistent way for colleges (or, for that matter, courts) to ensure that these newly mandated prerequisites for sexual intercourse are followed. It is impracticable for the government to require students to obtain affirmative consent at each stage of a physical encounter, and to later prove that attainment in a campus hearing. Under this mandate, a student could be found guilty of sexual assault and deemed a rapist simply by being unable to prove she or he obtained explicit verbal consent to every sexual activity throughout a sexual encounter. In reality, SB 967 would render a great deal of legal sexual activity into “sexual assault” and imperil the futures of all students across California.
On a more academic level, the bill and policies like it could introduce a problematic double-standard, Batya Ungar-Sargon wrote at the New Republic earlier this month. "This recent legislation reflects a growing trend to criticize our current sexual culture as one which condones sexual assault, a crisis often referred to as 'rape culture,'" she said. "Some of the criticism is valid, but, by and large, this new discourse renders women as either receivers of, or victims in, the phallic pursuit of sexual satisfaction. These measures and the discourse which invigorates them ratify a double standard into law and have the potential to pervert justice."
[H]ere lies the crux: while male desire is deemed equivalent to “affirmative consent," female desire is not. A double standard is actually ratified into law whereby the phallus represents true, unmediated desire, while female desire must be interpolated through words. While the law must protect women from the inequality of force men have at their disposal, what is the utility of demanding that women require an extra level of mediation to signal desire, under conditions where no imbalance exists?
Herein we find one of the most outrageous part of the bill: Its assumption of men as the initiators of sex acts, and women as their recipients.
Still, the landmark legislation has spurred an important public conversation about the concept of consent, said Jessica Valenti, Guardian columnist and a co-author of Yes Means Yes!: Visions of Female Sexual Power and A World Without Rape, published in 2008.
In a Guardian column on September 2, Valenti wrote: "[T]his is what makes the legislation so important for colleges: mandating 'yes means yes' in sexual assault policy puts the onus on colleges to give comprehensive consent education. If students are to abide by that standard, they need to know what it means."