Affirmative Consent aka Yes Means Yes

As the Lutheran Episcopal Chaplain at UC Davis, legislation was recently passed in California that directly affects the university and students I serve.  SB 967 aka the “Yes Means Yes” law, was signed by Governor Brown, thus putting a new way of charting and evaluating sexual interactions on campuses into place.

The previous standard, “No Means No,” presupposed that the victim of a sexual assault must have said no to the activity or did something to indicate the interaction was unwanted.  That is, she or he had to show evidence of a struggle or non-compliance (bruises, scratches, etc.).  But not all instances of sexual assault leave such marks.  If a victim was threatened, there may not have been a struggle (or affirmative no).  If a victim was severely intoxicated or unconscious, then there would be no evidence of a struggle.  And victims have also described simply being in such a state of shock or terror that they neither stated no or fought back in a way that the legal system deemed to be a ‘no’ response.  Thus, victims who were left with no bruises or no evidence of having said no faced an unfair uphill battle to prove the sexual contact was unwanted.  Likewise, alleged perpetrators have argued that since there was no struggle or indication the victim didn’t want it, they supposed what they were doing was ok.

This bill seeks to change that.  In the midst of physical encounters, this bill now requires that students receive consent at every point, and understand that consent can be withdrawn at any point.  The text of the law defines affirmative consent 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.”  It also reiterates that someone who is intoxicated, unconscious, incapacitated, or asleep cannot give consent.  This is the standard of consent that colleges and universities must now use when investigating allegations of sexual assault.  The National Coalition of Men opposed the bill, saying that it is impossible for an accused man to prove that he secured consent.  So, is this a step forward or backward in protecting women and men from sexual assault?

Certainly, this isn’t the first time a policy like this has been proposed or enacted.  Back in the mid 90s, I remember discussing a college whose student handbook similarly required that sexual interactions receive consent at each step in the process.  In theory, it does seem empowering since it takes a much more positive view of human sexuality, seeking affirmation and checking and double checking that what is happening is acceptable to all participants.  If implemented, situations of rape and especially acquaintance rape, would decrease since if consent is withdrawn at any point, the interaction must stop.  And utilizing this as the standard when investigating an alleged rape does remove the need for the victim to prove through bodily harm that the contact was unwanted.

As a chaplain, it opens up space to talk about what is healthy in sexual relationships, and gives students a chance to be thoughtful about their bodies and how they communicate their intentions with one another.  Indeed, this law alone will not stop rapists from raping.  But hopefully it will lead students to be more intentional about how they proceed in intimate encounters.  And it sets a different standard for how rape allegations should be investigated.  It will be interesting to see how this changes the conversation about sexual interactions and the judicial process on college campuses.