On Sunday, California governor Jerry Brown signed a landmark bill to redefine sexual consent on the state's college campuses. The law represents a groundbreaking change in state legislatures, which could increasingly come to be the entities that hold institutions of higher education accountable for their prevalent mishandling of sexual assault investigations.
The law requires colleges and universities, whether they are public or private, to adopt an affirmative consent standard -- often stated as "yes means yes" -- which can effectively remove the ambiguities of indirect consent and create a clearer burden of proof. The law goes beyond the typical "no means no" standard and sets clear guidelines for what constitutes consensual sex: According to the law, "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."
Naturally, the new law has detractors, despite passing unanimously in the California State Assembly. The Foundation for Individual Rights in Education condemned the bill in February, and on Monday issued a statement calling the bill a threat to accused students' due process rights:
We are not alone in arguing that the bill is a harsh blow to due process rights on California campuses -- other due process advocates have questioned, for example, whether people can possibly be expected to follow such a strict standard for communication during sex, much less demonstrate during a hearing that they have done so. ... In practice, the bill will shift the burden of proof to the accused student -- and supporters of the bill have openly praised it for doing so.
The "strict standard for communication," however, isn't so strict. People simply have to say yes to having sex, which proponents of the bill have already noted is arguably the sexiest thing a person could say. Moreover, demonstrating receipt of affirmative consent isn't so hard: It involves not lying about whether a partner actively and enthusiastically said "yes" to sex in the case of an investigation -- because being conscious and saying "yes" leaves little room for confusion.
And it's confusion that seems to get in the way of many colleges and universities adequately addressing sexual assault cases under current standards for consent. According to an investigation by the Huffington Post, fewer than a third of campus sexual assault cases end in expulsion, indicating shameful misunderstanding on the part of schools when it comes to adjudicating sex crimes. Allowing rapists to remain on campus after they have been found responsible for sexual assault exhibits a complete disregard for survivors, as well as a complete disregard for the realities of sexual assault -- a crime that occurs when there is an absence of consent, often resulting in severe physical and/or psychological trauma for the victim. Nonconsensual sex is rape, rape is a crime and crime is supposed to be punished.
Yet many schools do not see it that way. The HuffPost analysis notes that, as many colleges and universities attempt to do away with "legalistic language" for sexual assault cases -- for example, using the term "nonconsensual sex" instead of "rape" -- they also promise to adjudicate using a process that is "not punitive" when it should be. This is an unacceptable standard; a reason it stands, however, is because students and school officials can freely plead befuddlement about what sexual assault looks like.
The California law removes perpetrators' ability to plead confusion, and it prevents schools from pleading ignorance to their crimes. By naming and defining consent, it creates a definition of sexual assault by contrast, which allows schools (finally) to address the issue -- or, at the very least, to be held accountable for their failures. The law opens up dialogue between sexual partners about what is and is not desirable (which shouldn't be novel). But it also extends the expectation that such dialogue occur to the institutions responsible for investigating instances where it does not. It gives everyone the clarity necessary for prevention -- and there is nothing unsexy about that.