A bill making its way through the California Assembly is attempting to address the problem of rape on college campuses by mandating affirmative consent, or a verbal or written yes, before engaging in sexual activity.
SB 967, which has already passed the state senate, says that all sexual behavior on state-run college campuses requires “an affirmative unambiguous and conscious decision by each participant to engage in mutually agreed upon sexual activity. … Lack of protest or resistance does not mean consent, nor does silence mean consent.”
Students who want to have sex on campus will need to reach a mutual agreement. The bill comes as four of California’s state universities made the list of 55 colleges under investigation by the U.S. Department of Education for mishandling sexual assault cases.
A few weeks ago, I wrote about Brown University’s botched attempt to deal with one case of sexual assault and mentioned how it gave me déjà vu because similar events had happened on that same campus when I was a college student two decades ago. This California bill also is giving me déjà vu, as I immediately remembered the highly criticized policy developed by Antioch University in 1991 (also during my college days) that required affirmative consent seemingly at every touch. This became the butt of many jokes and the focus of a 1993 Saturday Night Live sketch starring actress Shannen Doherty, who was at the height of her Beverly Hills 90210 fame, and the late SNL cast member Chris Farley. Though I found the skit (which I will explain in more detail later) offensive, Antioch’s strict rule still struck me as a bit ridiculous at the time. I did not believe that it could really work to end the crisis of college sexual assault. And I was pretty sure that it would ruin consensual sexual spontaneity.
I still worry about those things. However, it’s been more than 20 years, and we clearly haven’t solved the problem of sexual assault on campus, so it seems like a good time to revisit whether legislating affirmative consent might make a difference.
Affirmative consent essentially changes the current standard of “no means no” to one of “yes, and only yes, means yes.” In its most basic form, it means that the person who is initiating sexual behavior must receive a verbal yes from the other person before continuing, and that this consent must be ongoing through the sexual encounter. In other words, consent for kissing does not count as consent for oral sex.
In my interview with Toby Simon about her work to prevent sexual assault on Brown’s campus in the 1990s, she pointed out that within a few years the “no means no” message had gotten through. In
Brown’s skit-based prevention program, if the young woman on stage said “no” out loud, there was no longer any debate amongst the student audiences watching the performance—she had been raped. But if she was silent, multiple questions about her motives, behaviors, and culpability came up. So, if “no means no” sunk in on that campus more 20 years ago and sexual assault is still prevalent there, it seems clear that we need a new standard.
Though it is easy to define the standard of affirmative consent, operationalizing it is far more complicated. The process is clunky at best. Consider these finer points in Antioch’s 1991 policy:
- Consent is required each and every time there is sexual activity.
- All parties must have a clear and accurate understanding of the sexual activity.
- The person(s) who initiate(s) the sexual activity is responsible for asking for consent.
- The person(s) who are asked are responsible for verbally responding.
- Each new level of sexual activity requires consent.
- Use of agreed upon forms of communication such as gestures or safe words is acceptable, but must be discussed and verbally agreed to by all parties before sexual activity occurs.
- Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dance floor is not consent for further sexual activity).
If this policy is followed to the letter, it would mean that even if you were fooling around with a partner of several years with whom you’d done pretty much everything, you would need to discuss and agree upon what you were going to do tonight—either in advance or along the way.
This is where comedians had a field day, and where the SNL crew came up with their skit. It opened up on set of a Jeopardy-like game show, called “Is It Date Rape?” hosted by the “Dean of Intergender Relations.” The contestants were Ariel Helpern-Strauss, a “junior and a major in Victimization Studies,” played by Dogherty, and “Mark Strobel, a nose back and Sigma Alpha Epsilon brother,” played by Chris Farley. The running joke is pretty obvious: She thinks everything is date rape and he thinks it’s not. In a skit within the skit, the “date rape players” parody what a sexual experience at Antioch would now look like with lines like “May I touch your left breast now?” and “Yes, you have my permission to touch my breast.” The whole thing depicts affirmative consent as pretty ridiculous. You can read the full transcript here if you want to know the details.
Again, I found the sketch offensive to women and especially to survivors of date rape, because it was one more example of people belittling their experience and portraying them as oversensitive. Further, it suggests that affirmative consent will turn what could have been a fun, intimate experience into something about as sexy as getting your taxes done.
In writing about California’s proposed law for the site Vocativ, Elizabeth Kulze—who also notes the similarity to the Antioch rule and mentions the SNL sketch—says that affirmative consent rules miss the mark because date rape is not about misunderstanding.
Multiple studies have shown that the sexual assault crimes are almost never a consequence of miscommunication. Rapists are usually aware that their coercive and aggressive behavior is both wrong and unwelcome, but they go ahead and pursue the prize anyway.
She’s right that the men involved in many sexual assault cases have no intention of stopping no matter what they hear. But communication is still important. Young men have been taught by our society that their role in relationships is to want sex badly, and women’s is to reluctantly give it to them. Many have never really been taught what is and isn’t consent—except, perhaps, “no means no.” That does not excuse any man who rapes, but it is a problem. Fostering a culture of affirmative consent among both parties could prevent at least some men from raping.
Moreover, as Amanda Marcotte pointed out in a piece for Slate back in February, affirmative consent might help us do away with the myth that sexual assault on campus is often just a case of women regretting their weekend of drunken sex:
Looking for a woman who said “yes” (or any variation of it, which can be expressed in a variety of ways, both verbal and nonverbal) instead of focusing on whether she said no in exactly the right words will help put the role alcohol plays into focus. It will clear up some of the murky gray areas, such as cases where a woman is too drunk to be articulate in her refusals but not so drunk that she passes out. It will also offer a degree of protection for scared men, because a somewhat intoxicated woman who explicitly asks for sex will have a hard time convincing the courts she hasn’t “demonstrated intent” to bone. It’s an easy way to get more guilty men convicted while offering protection for innocent men.
What I think convinced me the most about the potential benefits of affirmative consent, however, is the idea—pointed out on 90sWoman.com—that such a rule creates a community standard.
The 1991 Antioch policy called sex without consent an “offense against the entire campus community.” State Sen. Kevin de León (D-Los Angeles), who authored the California bill, said in a February press conference, “The measure will change the equation so the system is not stacked against the survivors. There’s nothing that’s vague, there’s nothing that’s ambiguous to this equation right here.” More recently, he added, “I think this is really critical that we create a culture that’s respectful of women, that we create protocols that are transparent.”
Having this new standard, which lets everyone know that sex without active consent is not OK, is an interesting start to changing culture. It rules out sex with someone who is too drunk to consent. It rules outs blaming the victim for not saying “no” or for following a guy back to his room. (“Well, what did she expect?” becomes “She expected to be asked for her consent.”) And as much as possible, it interjects into the situation some pre-sex conversations, which we sex educators have been trying to get couples to embrace for years.
I recognize that the roots of rape culture in our society go far deeper than what happens between individual couples in the bedroom. On a societal level, we have a lot of work to do on how we view sexuality and gender before we make a dent in our rape problem. I also recognize that these laws may be impossible to enforce and may not, in the end, make it any easier to punish rapists; there will no doubt still be he said-she said battles over who said “yes” and when.
Yet I find myself hopeful at the thought of this law passing in California. It’s a baby step—but one that’s trying to incite a culture shift away from putting the onus on women to prove they didn’t want it. And culture shifts usually do happen in baby steps.
Correction: A version of this article incorrectly noted that “students who want to have sex on campus will need to reach a mutual agreement either verbally or on paper” (emphasis added). However, the latest version of the bill text omits that reference, saying only that there must be “an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.” We regret the error.