Few people these days would disagree that when it comes to sex, no means no. If a woman (and it is usually a woman) says no but a man does not stop, well, that's sexual assault. But now there's a growing movement on college campuses — not a brand new one, because many schools have already adopted this policy — to insist that “no means no” is not enough. Rather, people should be sure they have the “affirmative consent” of their partners before proceeding down the road to sex. According to that view, without an active expression of clear and unambiguous consent, the activity should be considered nonconsensual.
On the one hand, that's reasonable. Of course both parties should consent to sex, and of course both should be confident that their partner consents as well. To the extent that there's a serious campus sexual assault problem — which President
addressed in his announcement setting up a
task force on the issue — some portion of it has to do with the often murky nature of consent. Many accusations of sexual assault arise because one party says the sex was consensual and the other says it was not. Surely, affirmative consent would help solve that problem.
But is there a role for the government in mandating affirmative consent? It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms. Colleges, to their credit, are struggling to clarify and strengthen their policies on sexual misconduct, and are seeking to provide better support for victims of sexual assault in the face of growing concern about the issue. But must they become so prescriptive as to try to set rules about exactly how sex should proceed? There are serious questions about whether such a policy is either reasonable or enforceable.
The state Senate will take up exactly these questions this week when it considers SB 967, a bill that would, among other things, make all schools in the state that receive public funds for student financial assistance — among them, the UCs, Cal States and community colleges — include an “affirmative consent standard” as part of their sexual assault policy. The standard would require that the “person initiating” must ensure that he or she has the consent of the other person before moving forward toward sex. “She never said no” would not be a defense. The question would be, “Did she ever say — or indicate — yes”?
Initially the bill, introduced by state Sens. Kevin de Leon (D-Los Angeles) and Hannah-Beth Jackson (D-Santa Barbara), called for consent given “by words or clear, unambiguous actions,” and said that “if there is confusion as to whether a person has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion can be clearly resolved.” The bill noted that relying on “nonverbal” signs could lead to misunderstandings. To critics, that language suggested that students had to pause at each step along the way to the sex act to ask each other — preferably out loud, in words — if both parties were still onboard.
That seemed, to say the least, to add an artificial element to sex and to mandate specific behavior in the bedroom that has traditionally been beyond the state's purview. While affirmative consent may be legally and even morally advisable, is it enforceable or the business of the Legislature?
Responding to those and other concerns, De Leon has revised the bill, toning it down slightly to define consent as “an affirmative, unambiguous and conscious decision by each participant” and dropping the language about using “words.” He also has pared back the insistence that sex should be halted in cases of confusion. The bill does, however, say that consent must be “ongoing” and “can be revoked at any time.”
Those changes, though well intentioned, merely underscore the complicated terrain that this legislation attempts to navigate. It's one thing for counselors or school administrators to teach students how important it is to have the consent of their partners. Students should understand about the confusion surrounding consent. They should know that drunk people are not in position to say yes. They should be aware that consent can be revoked at any time. They should be urged to be attentive to what their partners want or don't want.
But a state law is not the way to convey messages better imparted by experts. It's one thing for the government to say what people may not do, but it's more worrisome when politicians tell us what we must do. Yes, the new standard might help in the adjudication of sexual assault allegations, but its language still seems both vague — what exactly would constitute an unambiguous sign of consent? — and unnecessarily intrusive.
In any case, the issue is moving so quickly that even the Legislature is late to the game. Affirmative consent standards are becoming widespread. The University of California system has such a standard. (In fact, the De Leon bill echoes some of the language of the UC policy.) Stanford has one. Most Ivy League schools have one, and those that don't — Brown and Harvard — are reviewing their current policies and could end up considering the idea.