Tuesday, September 30, 2014

California Requires Affirmative Standard for Consent to Sex at State-Funded Colleges and Universities

This week the governor of California signed legislation putting into effect a requirement that colleges and universities receiving state funds define sexual assault as the absence of affirmative consent in their codes of conduct. Dubbed the "yes means yes" standard, the requirement for affirmative consent is meant to clarify what is often the murkiest element of sexual assault by clearly defining as nonconsensual any sexual contact that both partners have actively agreed to. The law also clarifies that someone who is drunk, drugged, or asleep cannot provide consent.While consent must be actively affirmative, it need not be express, as the law allows universities to include nonverbal expressions of consent, such as nodding one's head or moving in closer. On the other hand, consent must be revocable by either party at any time, and must be renewed for each encounter.

I've read many comments that criticize this challenge as an unrealistic expectation that is at odds with college students' natural behavior. Yet at the same time, I noticed several indications of support for an affirmative consent standard among students whose colleges have already imposed one. One male student characterized the Grinnell College student body as generally enthusiastic about its affirmative consent standard that was adopted in 2012, while another male Grinnell student testified that he has worked in questions like "are you all right with this?" and "do you want to go further?" without it feeling odd. And on NPR last night, a female student at Occidental said  affirmative consent was "already happening" in her experience, which has included getting questions like "are you good?" that have created openings for her to be specific about what she wants.

Affirmative consent can't really be such a hopelessly unrealistic standard, then, if it's garnered support among students in some places and is already happening naturally in others. Moreover, it's worth pointing out that male and female students alike have entered the public discourse on this issue in favor of affirmative consent. It's possible that students of both sexes realize that just little questions like "are you good?" seem like a small price for the kind of clarity that reduces risks for both the asker and the receiver of such questions.

And even if the critics are right, and affirmative consent is at odds with college student's natural behavior, it is also worth remembering that it's not worst thing in the world to challenge and support students to do better than they otherwise might and to cultivate character and emotional maturity than they have coming in. That is, already, a role that is undertaken by higher education in this country, and there's little reason why that role cannot extent to the issue of consensual sex as well.