California's 'yes means yes' bill: how it addresses campus sexual assault

California will become the first state to require colleges and universities to set a standard of “affirmative consent” for sexual activity, if a bill passed Thursday is signed into law by Gov. Jerry Brown (D).

The mantra for rape prevention on college campuses used to be “no means no.” But prevention advocates have been pushing for a shift to “yes means yes.”

It’s about “making it clear that the responsibility for sexual violence should be placed on the perpetrator ... and people should have the right to be free from sexual impositions,” says Laura Dunn, a campus rape survivor and legal advocate through the group SurvJustice.

In too many situations, victims have a hard time convincing campus judicial boards that they were raped because they are expected to show they physically or verbally resisted, advocates say. In other cases, they run up against the idea that consent can be implied if it’s been given in the past, to a dating partner, for instance.

The California law would clarify that consent can never be assumed.

In investigating complaints of sexual violence, colleges would have to define affirmative consent as: “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,” the text of the legislation reads. “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.”

The bill also makes it clear that intoxication can’t be used as an excuse for believing there was consent.

Many colleges have begun to address the idea that consent can’t be given if someone is intoxicated. Yale has offered students a detailed range of scenarios to educate them about what clear consent looks like. But few have gone as far as the California law would require.

The University of California, which recently adopted an affirmative consent standard, and the California State University system, both backed the bill.

The legislation is opposed by some lawmakers, men’s rights groups, and groups concerned about due process for the accused.

It would impose a “confusing and legally unworkable standard for consent to sexual activity,” says a statement by the Foundation for Individual Rights in Education (FIRE). “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.”

California Assemblywoman Kristin Olsen (R) said the bill goes far beyond what government should regulate, and “it will just become another one of the many laws in California that always lead to litigation,” the Associated Press reports.

At the federal level, a rulemaking committee charged with implementing updates to the Jeanne Clery Act on campus crime decided against requiring an affirmative consent standard nationally. The goal was to avoid a confusing mix of standards, since each state has its own definition of sexual crimes.

That was a wise move, says Hans Bader, an attorney who used to practice education law, including a stint at the US Education Department’s Office for Civil Rights. He’s concerned that the push to change campus policies is swinging too far away from fairness for the accused.

“In real life, consent can be implied, or manifested through acquiescence, rather than conveyed ‘affirmatively’ in advance,” writes Mr. Bader in an e-mail to the Monitor. “Mutually enjoyed activity should not be classified as sexual assault merely because rituals of affirmative consent did not precede it.”

But prevention advocates applaud the bill because it forwards national dialogue about what consent really means. The next step should be “funding and support to educate students at a younger age so they have the skill set for requesting and receiving consent,” says Mike Domitrz, who educates college and military audiences about consent and runs the Date Safe Project. When students learn how to talk in a healthy way about sexual activity with potential partners, he says, “they say they want to [take that approach] ... and it’s still romantic.”

The California “yes means yes” bill addresses a range of recommendations put forward earlier this year by the White House Task Force to Protect Students from Sexual Assault.

It requires a “preponderance of the evidence” standard – which means that judicial bodies on campus would take action against a student if they find it was more likely than not that he or she committed an offense. That standard that has been pushed by the Office for Civil Rights for a number of years in the enforcement of Title IX, the federal law prohibiting sex discrimination on college campuses. But it’s another aspect of the bill opposed by FIRE.

The bill also outlines protocols for giving campus sexual assault victims confidential support. And it requires comprehensive prevention strategies that address not only sexual assault, but also dating violence, domestic violence, and stalking.