Yes Means Yes, But Can Silence Mean Yes, Too?

Yes Means Yes, But Can Silence Mean Yes, Too?

When does yes mean yes? Does the yes have to be verbal? Does she have to sign a consent form?

These were some of the questions students asked when I told them about California Governor Jerry Brown’s recent signing of a bill that makes California the first state in the nation to attempt to define when “yes means yes.”

California state lawmakers in September approved SB967 which is designed to stem the tide of rape and sexual assault allegations on college campuses. The legislation, according to State Senator Kevin de Leon, a Democrat from Los Angeles who proposed it, the bill will bring about a shift in how college campuses in California prevent and investigate sexual assaults.

Recent research reveals that at least one in four college women will be the victim of a sexual assault during her academic career, at least 80 percent of all sexual assaults are committed by an acquaintance of the victim, and more than 48 percent of college women who were victims of attacks that met some definitions of rape did not consider what happened to them rape.

Other research carried out in the last few years suggests that students deemed “responsible” for alleged sexual assaults on college campuses can face little or no consequence for their acts. The women who are victims may end up with serious emotional consequences — some even dropping out of school. Yet it is clear, based on surveys and reports, that colleges have not generally handled sexual assault complaints well. This has led to studies, protests, and even a new White House–sponsored initiative called “It’s on US” – an awareness campaign to help put an end to sexual assault on college campuses.

Under the bill signed by Gov. Brown, silence or a lack of resistance does not constitute consent. The terms of de Leon’s bill says that someone who is drunk, drugged, unconscious, or asleep cannot grant consent. In addition, the bill adopts requirements for colleges to follow when investigating sexual assault reports.

The bill also requires training for faculty reviewing complaints so that victims are not asked inappropriate questions when filing complaints. And, students are required to have access to counseling, health care services, and other resources.

Many colleges in recent years have reportedly treated complaints of sexual assault casually or, in some instances, swept rape cases under the rug. Sometimes the colleges and alleged perpetrators have defended themselves by attacking the vague nature of “date rape” situations. California is attempting to change this. In SB967, the language pertaining to assent reads: “’Affirmative consent’ means 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.”

Which takes me back to my student’s comments and questions when talking about this new law.

“It’s one thing to pass a law like this,” one woman said, “but it is another for everyone to agree with it and follow it.” And, of course, she is right. Not only does every student on a campus need to know about the law, but they all have to buy into it. And being able to follow a law also means that both individuals need to be in a cognitive state that allows them to make decisions and choices. The secondary problem – one could argue that this is the primary problem – is drinking on campuses. Alcohol use and binge drinking is a huge problem on most U.S. college campuses.

“People don’t really operate the way this law suggests that they do,” a young 20s male student remarked. “Most of the time we don’t talk about sex; it’s just something that happens.”

He’s right. People engage in sexual intercourse often without discussing their plans or intentions. They don’t discuss it first, and they don’t make plans (at least not together) to have intercourse. Presumably to talk about having sex together would spoil the mood or quash the romance. For many people, sex is supposed to be spontaneous and romantic. But perhaps that is part of the paradigm shift that must take place. Research indicates that when parents raise adolescents to talk about sex with their partners, good decisions – like waiting or using condoms – can take place. Young people will have to learn that talking about it first can be sexier – and safer.

Finally, another man in the class raised the question that I think was on everyone else’s mind: “Even if she says yes, how do you prove that later? Are we supposed to video her consent or have her sign a consent form?”

Good question. The bill wasn’t meant to prescribe a formula for college students having sex. It was intended to help college investigation boards to look at complains of sexual assault and determine if consent was given. Many students will continue to have sex without any complaint or charges ever being filed. The problem that this bill attempts to address is how do you determine if an assault took place. Given the provisions of this new law, it is more difficult for predatory men to argue that a woman gave some ambiguous form of consent.