In a landmark piece of legislation, the California Senate yesterday passed an “affirmative consent” bill for colleges throughout the state. The first of its kind, SB 967 explicitly requires schools to adopt a standard of affirmative consent, defined in the bill 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. 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.
The bill goes on to describe in detail what does and does not count — protecting, for example, people who are raped while incapacitated due to the influence of drugs, alcohol, or medication. If signed by Governor Jerry Brown, the bill will require all public colleges and other institutions receiving state funding for student aid to implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence and stalking.
This image represents both affirmative consent and how I feel about this bill. Via Shutterstock.
Unfortunately, many news outlets have ‘balanced’ coverage of this important piece of anti-rape legislation by giving concerned citizens and rape apologists a platform to propagate misinformation.
The Washington Post included the following quote:
“I feel like their hearts are in the right place, but the implementation is a little too excessive,” Henry Mu, a 24-year-old biology major at California State Long Beach told the Press-Telegram. “Are there guidelines? Are we supposed to check every five minutes?”
From Inside Higher Ed:
How does a person prove they receive consent “shy of having it videotaped,” said Joe Cohn, the legislative policy director at the Foundation for Individual Rights in Education.
And in an AP article run in the Syracuse Post Standard:
Gordon Finley, an adviser to the National Coalition for Men, wrote an editorial asking Brown not to sign the bill. He argued that “this campus rape crusade bill” presumes the guilt of the accused. “This is nice for the accusers — both false accusers as well as true accusers — but what about the due process rights of the accused,” Finley wrote.
These statements spread confusion about what affirmative consent actually is (“yes means yes!” Really not that hard!) and, more dangerously, have little to no relation to the actual world that we live in.
To imply that affirmative consent policies turn well-meaning gentlemen into unknowing rapists is to reject the real world in favor of fantasy. Because we do not live in a world where people fabricate stories about sexual assault and report their bumbling but well-meaning sex partners willy nilly — statistically, false rape reports are extremelyrare. Rather, we live in in a world where rape prevention is a marketing opportunity directed at potential victims. Where young women are driven out of school due to harassment after reporting sexual assault. Where young men livetweet gang rape. Where protesters come out in droves to side with rapists. Where college universities deem sexual assault prevention programs “not cost-effective.” Where thousands of rape kits across the country sit untested because catching rapists is, apparently, not a top priority.
I could go on.
In short: we live in the middle of rape culture. This manifests in numerous awful ways, but most relevantly to this discussion, rape culture dictates that along with proving that they were raped, survivors must also prove that they fought “hard enough” to stop it. Not saying “no” or not physically fighting someone off, is understood to mean “yes.” And that is a huge problem.
By not accepting silence as consent, California’s affirmative consent bill nudges colleges away from rape culture and provides protection for marginalized groups. Although there are rape victims and survivors of every gender and race, women of color are especially hurt by this narrative. Frequently stereotyped as Jezebels, submissive sex-kittens and hot-headed seductresses, racialized assumptions characterize many WOC as always sexually available, by mere default of their existence. This creates an additional challenge for WOC to overcome when rape victims are burdened with the responsibility of proving clear lack of consent.
This bill won’t undo past violence or reverse the damage that has already been carried out. But it can provide marginalized groups with an extra measure of protection, as well as providing (at least some) current college students with the awareness that’s needed to bring an end to rape culture.
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FAQs
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.
What are the criticism of affirmative consent? ›
The problem is that what seems clear in principle is often decidedly less so in practice. Most affirmative consent policies, for example, say that consent may only be expressed through unambiguous words or actions. On its face, that is clear enough. Expressing unambiguous verbal consent only takes one word: “Yes.”
What is the yes consent law in California? ›
In California in late 2015, Gov. Jerry Brown approved a requirement (SB 695) for sex education to include a “yes means yes” as the standard for consent. Today, schools must use this affirmative consent standard when investigating the validity of sexual crimes claims (SB 967).
What is the difference between consent and affirmative consent? ›
Verbatim Language: “Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.
What are the exceptions to consent in California? ›
If you are incapable of giving informed consent, the law presumes that you would consent to life-saving treatment, and the physician is authorized by law to provide it. Emergency Exception: The second situation is in a life-threatening emergency. This is known as the Emergency Exception.
Who must receive affirmative consent? ›
It is the responsibility of the person initiating a sex act to obtain clear, affirmative consent. Whenever you are unsure if consent has been given, you need to ask.
What is an example of affirmative consent? ›
Periodically checking in with your partner, such as asking “Is this still okay?” Providing positive feedback when you're comfortable with an activity. Explicitly agreeing to certain activities, either by saying “yes” or another affirmative statement, like “I'm open to trying.”
Is enough is enough affirmative consent? ›
Enough is Enough was one of the first laws in the country to require: All New York State colleges and universities to adopt a set of comprehensive procedures and guidelines. A uniform definition of affirmative consent. A statewide amnesty policy for bystanders or victims who report sexual assault.
What does it mean that affirmative consent is freely given? ›
Affirmative consent is informed, freely and actively given, and communicated through mutually understandable words or actions that indicate a willingness to participate in mutually agreed upon sexual activity.
Is California a no consent state? ›
Unlike New York and New Jersey, California is a “two-party consent” state. This makes it illegal to record a private conversation unless all parties consent to the recording. A violation of the two-party consent provisions of the California Penal Code is a criminal misdemeanor and may also give rise to a civil lawsuit.
What is the Age of Consent in California? The age of consent is the age at which a person can legally consent to sexual activity. In California, it's 18 years old, meaning anyone under this age cannot legally consent to have sex with someone else, no matter how willing they may be.
What is the lowest age of consent in the United States? ›
What is the lowest age of consent in the US? The lowest age of consent in the U.S. is 16. Other states have an age of consent of either 17 or 18 years old.
What do fries stand for in consent? ›
In the past, many intimacy professionals, including IDC teachers, have used the Planned Parenthood acronym when teaching consent: FRIES. It stands for Freely Given, Reversible, Informed, Enthusiastic, and Specific. You've probably seen this image from their website at some point.
What are the 7 types of consent? ›
All rights reserved.
- Introduction. Consent is usually considered ethically and legally indispensable for administration of reproductive health care, but there is a spectrum of types of consent. ...
- 2. ( ...
- Informed consent. ...
- Freely given consent. ...
- Implied consent. ...
- Express (written) consent. ...
- Evidence of consent. ...
- Comprehended consent.
Consent can also be non-verbal. There are ways to express a clear willingness to engage in sexual contact without using words. Examples of giving nonverbal consent may include: Head nod.
What is affirmative consent law? ›
Affirmative Consent must be informed, voluntary, and active, meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed-upon sexual activity.
What is affirmative consent and why is it important? ›
Affirmative Consent means an informed, affirmative, conscious, voluntary, and mutual agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that s/he has the Affirmative Consent of the other participant(s) to engage in the sexual activity.
What is California Assembly Bill 1695? ›
California Assembly Bill 1695. Bill Title: Career technical education: Nursing Pathway Pilot Program. An act to add Chapter 16.7 (commencing with Section 53080) to Part 28 of Division 4 of Title 2 of the Education Code, relating to pupil instruction.
Is California a 1 consent state? ›
Unlike New York and New Jersey, California is a “two-party consent” state. This makes it illegal to record a private conversation unless all parties consent to the recording. A violation of the two-party consent provisions of the California Penal Code is a criminal misdemeanor and may also give rise to a civil lawsuit.
