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Is California’s New Affirmative Consent Law a Good Thing?

by John Max

California’s sexual assault law, has met with controversy and angry editorials across the internet. In my own reading of the law and relevant articles, I found numerous examples of disinformation and exaggeration. Whether these are deliberate or reflect poor understanding I can’t say, but I think a rational conversation about the law is necessary, so that students understand what affirmative consent means, and how they are required to seek it.

First, let’s blow a huge hole in the myth that the new CA law introduces incapacitation via alcohol or drugs as a basis for failure to give consent. This is not new, it’s been included in the states’ legal definition of rape for many years. An intoxicated person, of either gender, is unable to say “yes” in precisely the same way they were unable to say “no.”

It’s hard to imagine anyone disputing the reasonableness of this claim. Sexual intercourse should only ever occur between two parties who are 100% willing. The new legislation reflects the perception of lawmakers that “the system is stacked against survivors.”

What is questionable is the enforceability of the law. Though nothing new, the question is far more relevant now that schools no longer have the option of looking the other way. One of the reasons that so few students are disciplined after being accused of rape is that the investigation often boils down to he said/she said. That will continue to be the case, and for this reason several legal scholars question the long-term impact of the law.

What is Affirmative Consent?

The requirement to actively seek a “yes” from both parties before sex can occur is new. From the legislation:

(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity.
The law does not favor women – men have every right to affirmative consent as well, and they are also protected against assumed consent while incapacitated. 
a. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity.



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Nonverbal consent is fine. Examples include a nod of the head, or moving closer to the other person. In short, there must be no coercion – but enthusiastic interest may be expressed in many different ways.b. 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.


c. Lack of protest or resistance does not mean consent, nor does silence mean consent.

None of the following may be construed to indicate consent:

  • silence
  • lack of resistance
  • drunk
  • drugged
  • unconscious
  • asleep

*This is new.*
The old standard was “no means no.” A person who did not say no was assumed to have provided tacit consent. The CA law goes further to require “yes means yes,” which is express consent.

d. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.

*This is new.*

However, this is an area where disinformation has been aggressively spread. This does not mean that either party is required to ask, “May I touch the other breast now?” “Will you allow me to remove your brassiere?”

What it is clearly intended is to get an OK before penetration occurs. And again, this may be indicated with a smile, moving into position, removing underwear, or a thousand other ways.

As before, consent can be revoked at any time, including during intercourse. This means that a guy can’t slip off the condom midway, make a surprise play for anal, or thrust twice more after she says STOP.

e. 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.

A large number of complaints have involved sexual assault within long-term relationships, friends-with-benefits partners, or exes. A relationship commitment, past or present, is not a commitment to have sex on demand.
f. Outreach programming shall be included as part of every incoming student’s orientation.
Every student will fully understand the law and the school’s policy for handling sexual assault complaints.


Is Affirmative Consent a reasonable standard?

Legal expert Steve Mazie, writing at Big Think, explains:

To “consent” to sex is, put simply, to agree to have it. In the past, date rape standards have usually held that “no means no,” a rule that requires the non-consenting party to take it on himself, or, more often, herself, to refuse. The other party to the sexual encounter would then be obliged to stop any advances. But with the rise of sexual assault on campus, many colleges have switched to a model of “affirmative consent,” a requirement that both parties clearly indicate their desire to participate before any activity begins.

The idea has its root in social contract theory…John Locke, the 17th-century British political theorist whose ideas influenced the American founding fathers, was more thorough than most in parsing various types of consent. His schema applies surprisingly well to the question of consent and college sex.

When we push this conceptual framework under the covers, the “no means no” standard matches up to tacit consent: an indication to a partner that you aren’t objecting to his sexual advances if you don’t tell him you object. The California “yes means yes” standard, then, opts for express consent.

By insisting that its colleges evaluate questions of sexual violence using the express model, California acknowledges how easy it is for power imbalances in the bedroom to lead to rape. It sees, appropriately, that mere tacit consent—a supposed agreement that is not expressed but simply interpreted as such by the person making the sexual advance—does little to quell assault.

In my view, there is no logical or ethical grounds for rejecting the standard of affirmative consent as a matter of policy. We’re talking about sexual intercourse here! It should never be coerced or forced. Whether physical or verbal, attempts to overcome “last minute resistance” are profoundly unethical. Two thumbs up, please.

From a local CA editorial:

[Affirmative consent is] a good law. But I thought decent human beings already knew this. Sex without consent is rape. And sex without communication is not very sexy. Trust, tenderness and mutual affection are the heart of erotic experience.

Erotic relations are deeply ethical…In a genuinely erotic relationship, there should be no mistake about consent.

In a culture of casual hookups, however, this may be missing. The players in the hookup culture need the reminder that only an explicit “yes” turns on the green light for sex.

…When sex becomes an “it” that we can “do” or a thing we can “have,” we risk confusing a social relationship with an act of solitary gratification.

Is Affirmative Consent enforceable?

This is where the legislation gets tricky. Enforceability has always been an issue, and will continue to be under the new guidelines. Mazie:

College sex often takes place when one or more of the partners are under the influence of alcohol or drugs. When does this influence amount to “incapacitation”? If you’re so drunk that you pass out, you are without a doubt unable to offer affirmative consent. But we already knew that; provision (A) covers it.

So what if you’re just a bit tipsy? You’re probably fine to say “yes” to sex. But what about cases between the extremes: you’ve had a few beers and are drunk but not passing-out-drunk? Does the new California policy make it impossible for you to have sex without worrying about rape charges?

Obviously, alcohol is one of two elephants in the room here. The other is fraternities’ role as the primary provider of alcohol on campus. The new law does nothing to address the root of the problem.

With these and other knotty problems, the new rules for college sex in the Golden State may wind up having only a minor legal impact. But if the news coverage and debate over SB-967 makes college students more sensitive to the problem of sexual violence and more aware of their role in preventing it, Gov. Jerry Brown’s signature this week will not have been in vain.

I agree that student awareness and education are key. I also support raising the stakes – being found guilty of rape should mean immediate expulsion. But this law seems destined to obscure the real issues and produce more complaints mired in doubt. Some legal experts have predicted that accused parties may counter with their own complaint, resulting in many cases claiming mutual rape.

Does the law curtail the real rapists?

We know that a minority of men admit to pursuing sex through physical force, coercion, and the use of intoxication. These men are more likely to be members of fraternities and deny that their actions constitute rape. Changing the standard for consent will do little to change the behavior of men who disregard it entirely in any case.

Feminist Shikha Dalmia argues at Reason that California’s Sexual Consent Law Will Ruin Good Sex for Women:
The obvious problem with the law — which many other states are considering as well — is that it assumes that sexual assault, already a crime under multiple laws, is the result of miscommunication. The assumption is that somehow one partner (and let’s be honest, it is overwhelmingly the one with a Y chromosome) didn’t ask or realize that the other wasn’t into it. But the fact is: Most assaulters know exactly what they are doing. The vast majority of campus rapes are committed by a small minority of repeat offenders who give not a damn about what the woman wants. And if they can threaten violence, they can also lie about obtaining consent. So how will the law change anything?

What approach would be most effective?

There is very little evidence on what might actually work to curb sexual assault. So far all of the reports are strictly anecdotal, and this effort has been described as being “in its infancy.” From a New York Times article, one official says the law is already proving effective:

“I think the disciplinary panels find it easier to find a student responsible” for sexual assault, said Pam Thomason, the U.C.L.A. official who oversees compliance with Title IX, a federal anti-discrimination law. “They can ask, ‘What happened that made you think consent was affirmative, unambiguous and conscious?’ ”

Several states have similar measures pending, including Maryland, Texas and Connecticut. Meanwhile, colleges around the country are adopting the Affirmative Consent standard. Yale, the University of Texas, and the entire SUNY network have signed on. Harvard students are currently petitioning for the adoption of the standard.

There is some resistance, however, which focuses on the enforceability question. An editorial in today’s Boston Globe features 28 members of the Harvard Law School Faculty calling for the repeal of Harvard’s new sexual assault policy (which does not include Affirmative Consent):

Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.

…Harvard has inappropriately expanded the scope of forbidden conduct, including by:

 Adopting a definition of sexual harassment that goes significantly beyond Title IX and Title VII law.

 Adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.

This debate is just beginning. I expect a plethora of lawsuits from parents whose sons are disciplined harshly without due process.

What we really need to find a way to stop is drunk sex. In the meantime, we may hope for a silver lining. That all this talk of rape and expulsion will scare the crap out of would-be rapists and produce a dramatic reduction in the high number of campus rapes each year.

Your thoughts? How to solve this real and intractable problem?