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.
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 extremely rare. 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. Frequentlystereotyped 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.