Students must give affirmative consent to prevent accusations of sexual assault.
Amidst concerns that American colleges and universities are pervaded by a “rape culture” that condones the mistreatment of intoxicated young women, the California legislature recently passed a bill redefining consent on campus. The bill, known as the “yes means yes” bill in the media, stipulates that all colleges and universities must adopt a standard of unambiguous consent for students engaging in sexual activity in order to receive state funding. The schools must also improve their protocols for helping victims of rape and sexual assault.
While it is certainly true that many college administrations have not been handling sex crimes on campus very well infringing the rights of both victims and alleged perpetrators many experts doubt if the “yes means yes” bill is the right answer to the problem.
The bills states that “affirmative consent” must be “ongoing” throughout the sexual activity. On the surface this sounds like a reasonable standard and does silence the argument of “she (or he!) didn’t say no.” Not saying no is not enough both parties must clearly say yes or otherwise give unambiguous consent.
The problem is that the bill essentially criminalizes all sexual activity where this consent is not given. This begs the question: when neither party gives affirmative consent, who is the perpetrator and who is the victim? Have they both assaulted one another? This seems like a pretty big loophole.
Another problem is that this bill doesn’t seem likely to help with cases of rapes occurring when one or both parties are too intoxicated to know or remember what they are doing or saying. This seems like a very serious flaw indeed, when you consider the fact that experts believe most sexual assaults on campus are committed by a small minority of students who likely don’t care what the school’s policy is.
According to data collected by RAINN (The Rape, Abuse, and Incest National Network), 3 percent of students committed over 90 percent of college rapes. Yet California’s law is a blanket proposition that will affect all students, effectively uncoupling many normal expressions of desire from consent.
The good news for individuals accused of sexual assault or rape on campus is that the standards for proving these accusations are much stricter in the “real world” than on campus. If you have been found “guilty” of a sexual assault by campus authorities, they may be able to kick you out of school and put a kink in your life plans based on very little evidence at all, but you will not necessarily face criminal penalties. There is a much stricter standard for the burden of proof in our legal system, so there would have to be strong evidence of a crime (beyond a lack of affirmative consent) in order to bring a criminal case against you.
