On August 28, the California State Assembly passed a comprehensive campus rape bill, which is a very, very good thing. We need laws like this one because it's clear that most colleges will not actually give a shit about helping rape survivors unless they're forced to. Predictably, of course, this decision has been greeted by fitful howling from people who feel uncomfortable, confused and angry that legislators are taking real steps to deal with sexual violence.
One aspect of the bill (SB-967) mandates that schools must adopt an affirmative consent standard. Put simply, this just means that both students must agree to have sex for that sex to be considered consensual. Ok, cool! Sounds good! Who could argue with that? Um, well, actually... a lot of people, judging by the belligerent moans of men's rights activists; the misinformed hand-wringing at Time; and the delusional insistence elsewhere on the on the internet that affirmative consent will make it so all men must videotape every sexual encounter (lest they be accused, after the fact, of not asking for consent clearly enough). Some people are also having a lovely time bellowing about how we're all going to need sex contracts now. We will not need sex contracts, guys.
Here is what SB-967 actually says about consent:
"Affirmative consent" means affirmative, conscious, and voluntary agreement to engage in sexual activity. 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. 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. 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.
It further outlines that consent cannot be assumed if "the complainant was asleep or unconscious" or "the complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity."
Affirmative consent involves a conceptual shift: rather than being inferred through the absence of a "no," consent must now be explicitly given through the presence of a "yes." Lawmakers have said that consent doesn't necessary need to be verbal; in my experience, it's pretty easy to tell when someone consents to sex via nonverbal cues. It's also not at all difficult to ask if they're okay if they seem uncomfortable or otherwise unwilling. The petrified responses evoked by this law are, frankly, ridiculous — it doesn't seem to me that asking college students to make sure that their sex partners are neither unconscious, incapacitated, nor unwilling is that big of a deal.
Critics, like Cathy Young at Time, say that this legislation "may implicitly criminalize most human sexual interaction." According to Young, instituting an affirmative consent standard is dangerous because students "could start feeling ambivalent about a [sexual] encounter after the fact and reinterpret it as coerced — especially after repeatedly hearing the message that only a clear 'yes' constitutes real consent." This is a fear I've seen echoed across the Internet, and I find it completely baffling. How can anyone wield logic like this without feeling constantly terrified? If you are concerned that most of human sexual interaction could possibly be interpreted as rape, isn't that more worrying than the fact that students may face academic sanctions for accident-raping? And — if you sincerely believe that college students are committing sexual assault by accident — why aren't you more concerned with, oh, I don't know, teaching them how not to do that?
Of course, none of the various howling critics seem to understand that SB-967 is about much more than just affirmative consent. It's about ensuring that colleges in California take a comprehensive approach to campus rape, and it was written with input from universities, students and advocacy groups. In a phone interview, Denice Labertew of the California Coalition Against Sexual Assault (CALCASA) described much of the discussion about affirmative consent as "off-base." "I know people call SB-967 the affirmative consent bill, but affirmative consent is actually a very, very small piece of it," she told me. "The underlying premise of 967 was that we would develop a comprehensive approach to being able to address the issue of sexual violence on college campuses."
SB-967 utilizes a three-pronged approach, stressing survivor centeredness in building strong sexual assault policies; community engagement between various university departments as well as with sexual assault resources off-campus; and comprehensive prevention, which calls for programs that will address sexual violence before it occurs. Consent education is an important part of the latter. Affirmative consent is just one part of the former. Notably, it's not really a new concept at all (sorry, angry anti-feminists!). In fact, schools across the country have already implemented it without turning into smoldering misandrist dystopias: Yale, Dartmouth, USC and Duke, for instance, all currently use affirmative consent clauses in adjudicating sexual assault.
It's clear that most of the most vocal critics of the bill lack a fundamental understanding of how sexual assault is actually handled on campus. I've read several hysterical articles and comments alleging that adding an affirmative consent clause into college sexual assault policies will give administrators free range to expel innocent students with wanton abandon. If you've read a single report on sexual assault at college campuses — literally even one — you will know that this fear is utterly laughable. Colleges rarely, if ever, expel students who are found guilty of sexual misconduct. Right now, a Columbia student is dragging her mattress to class every morning to protest her rapist's continuing presence on campus, and her case is far from an isolated incident. It's depressingly commonplace for schools to fail rape survivors in this way. In reporting on campus rape, I've spoken to several students — both men and women — who dropped out of college after their administrations refused to remove their rapists from campus. I've read about countless more. Many of these students suffered from depression and PTSD in the aftermath of their assault, and some attempted suicide. All of their attackers graduated relatively consequence-free: until very recently, the harshest punishment I'd heard of a rapist receiving was a single-semester suspension. We need stricter laws precisely for this reason. Colleges are wildly unlikely to take decisive action to protect sexual assault survivors without pressure from outside forces.
Furthermore, an affirmative consent clause won't radically alter the sexual assault adjudication process — affirmative consent isn't a policy. It's just an updated definition that takes the onus off of students to prevent their own rapes. Because 72 percent of rape victims report being intoxicated at the time of their assault, and because it's not uncommon for sexual assault victims to feel paralyzed with fear, we desperately need a new understanding of what constitutes giving — and asking for — consent. It's ridiculously myopic, not to mention pretty damn cynical, to argue that affirmative consent is "dangerous" because students may be confused about what constitutes a "yes." This also has a very obvious solution — we need to better educate college students on how to have clear and productive conversations about sex with their partners. Insisting that it's somehow "safer" for college administrators to cling to a shoddy, unacceptable model that has failed rape survivors for decades now isn't just ignorant: it's negligent, and it's unconscionable.
Labertew argues that affirmative consent has become unduly controversial among commentators because because it requires a fundamental paradigm shift in how we conceptualize sexuality. "[Affirmative consent] requires us as a society to acknowledge that victims' bodies, particularly women's bodies, are not just available until they say they're not available," she said. "This idea that women should have to say no or indicate that they don't want to have sex assumes that their bodies are just automatically available."
We live in a society that teaches us that women's bodies are owed to men; this is a belief that's constantly recirculated and reinforced in our culture. It's why some men feel entitled to sex simply for treating women with decency and why some feel justified in throwing vitriolic, misogynistic fits when they're denied that "right." It's why people see nothing wrong in looking at and recirculating stolen nude photos of female celebrities, why they will argue that a woman who doesn't wish to have her privacy violated should just never take naked photos to begin with (in our culture, logic dictates that the only way to protect yourself from violation is to take every feasible precaution, because violation is pretty much inevitable). It's also why women can't simply go about their daily lives without hearing unwanted, harassing comments on their physical appearances. The idea that women's bodies are public property is ubiquitous to the point of banality. Of course there's a strong resistance to the idea that consent should be asked for, not assumed.
It is not difficult not to rape someone. Putting the responsibility on college students to make sure that their sex partners are consenting and conscious is really not asking a lot — to even call that "common decency" would be insulting to the concept of decency. And making sure that you have your partners' enthusiastic consent is a far cry from a "sex contract." In the words of Gloria Steinem: "Since when is hearing 'yes' a turnoff? Answering 'yes' to, 'Can I touch you there?' 'Would you like me to?' 'Will you [fill in blank] me?' seems a turn-on and a confirmation of desire, whatever the sexual identity of the asker and the asked."
The only thing truly "threatened" by affirmative consent clauses is the shitty status quo.
Image via Tara Jacoby.