California could become the first state to require colleges and universities to make "yes means yes" a central part of their sexual assault policies.
A bill currently before the state Legislature, which passed the state Senate in May, would require colleges and universities that receive state funding to adopt an "affirmative consent" standard for their sexual assault and gender-based violence policies.
The bill defines affirmative consent as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” The bill also makes clear that a lack of resistance is not equivalent to an explicit assent, and that consent “must be ongoing throughout a sexual activity and can be revoked at any time.”
This affirmative consent standard, also known as “yes means yes,” is necessary because the current system effectively forces women to prove they resisted, a standard that is ill-defined. As colleges and universities face pressure to change the way they deal with sexual assaults on campus from students, this first-of-its-kind legislation could provide states with another way to address the issue.
“The reality is, when you’re inebriated, when a drug has been slipped into your drink, you can’t say no, you can’t fend off an attacker,” State Senator Kevin De León, the legislation’s sponsor, said on MSNBC Tuesday. Many victims of sexual assault, he continued, “have to prove to themselves, to a prosecutor, to a district attorney to a panel on a college campus, that they affirmatively said no.”
According to the legislation, someone accused of sexual assault could not claim that they believed someone had consented if they knew or should have known that their alleged victim was asleep, unconscious, intoxicated. Survivors of sexual assault often describe being disregarded because they had been drinking, something that has happened in recent high profile cases.
Prior relationships would also not provide a defense for alleged perpetrators; the vast majority of sexual assaults are committed by people known to the victim. ”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 legislation said.
This year, sexual assault on college campuses across the country has been the focus of legislation, a White House task force, federal investigations, and conferences. According to one statistic, as many as one in five women will experience sexual violence while attending college.
The bill has faced criticism, and affirmative consent policies have been the source of controversy since the 1990s, when some college campuses first adopted them. But Sofie Karasek, co-founder of End Rape on Campus, told msnbc that that resistance could provide an opportunity to confront rape culture.
“I think it has been really effective in generating a dialogue in the mainstream and amongst students about what is consent and shifting the dialogue from ‘no means no’ to ‘yes means yes.’ That’s a really important aspect of the ultimate culture change that we’re trying to create.”
If other states took up measures like this one, Karasek said, it would shine a light on how widespread toxic attitudes really are. “A lot of [critics] are saying ‘this is going to ruin the moment, this is so ridiculous that we’re even trying to legislate it’ shows how pervasive it is to not ask for consent."
Even if the bill becomes law, schools will face challenges with enforcement. Colleges like the University of California-Berkeley and Dartmouth already have affirmative consent policies in place, but without resources, cases will still fall through the cracks. “At Berkeley, where I’m a student, we have three Title IX investigators, which is a lot compared to other universities, but we have 35,000 students,” Karasek told msnbc. “If there is an affirmative consent standard, which there is, they can’t handle the cases in the best way because they just don’t have the resources to handle it.”
While resources may remain tight, other legislators have taken up the cause of fighting campus sexual assault. In July, a bipartisan group of senators introduced legislation to reduce sexual assault on campus and get more information about how prevalent sexual assault and gender-based violence actually is at different schools. Two Democratic co-sponsors, Sens. Claire McCaskill of Missouri and Kirsten Gillibrand of New York, said they hope to take up the bill after Congress returns from its five-week break.