State of Consent in California

09/12/2014 04:26 pm ET Updated Nov 12, 2014

As college students file onto campuses across the country with crammed backpacks and surging hormones, California Senate Bill 967 patiently rests on Governor Brown's desk awaiting his signature. Nothing defines the college experience like frat parties and alcohol fueled debauchery but in response to headlines filled with "Campus Rape" and "Sexual Assault" state lawmakers took steps to temper the sexual behavior of students enrolled in universities and colleges across the state by passing legislation adopting affirmative consent. This isn't the first time affirmative consent appeared in the news; Antioch College made morning headlines and night-time fodder when they introduced it into their Student Code of Conduct in the early 1990's. The general consensus at the time, which reverberates now, is the effort for sexual correctness has gone too far. Opponents trumpet the bill's expectation for affirmative consent to be "ongoing throughout a sexual activity" as unrealistic; proponents herald the bill's "Yes means Yes" stance where "lack of resistance" or "silence" does not mean consent.

Culture of Implied Consent

The problem lies with the current mainstream adoption of implied consent. We live in an era where a hacker can post nude images of you and most generally accept it as your fault because you should have known better than allow the pictures to be taken and saved to the cloud in the first place. Implied consent is so evasive that women who walk by a construction site with too much cleavage deserve catcalls, women who wear short skirts in a club earn a grope, and women passed-out on a couch asked for sex. Rape culture, a term once exclusively used by feminist or liberal media, has now seeped into conventional conversations. Chart-topping catchy tunes ringing the "Blurred Lines" of consensual sex and viral meme's telling us "what women really mean" are not random isolated incidents but an indicator of a larger social trend.

Justified

SB 967 isn't a knee-jerk reaction by California lawmakers to Billboard's top 10's or a few underwear ads but a response to continued victimization on college campuses. On Friday, the CDC released results from a survey conducted in 2011. The findings show that an estimated 43 percent of women have suffered some form of sexual violence and 19 percent have been raped in their lifetime. Of those who reported being raped, 78 percent of women and 71 percent of men stated the incident occurred when they were under the age of 25. The alarmingly high incidents of sexual assault are not hype but fact. With a significant portion of our population being victimized, a drastic new approach was to be expected.

The Road to Hell

There are many who oppose the law and they're not just post-adolescent men hoping to get laid. FIRE (Foundation for Individual Rights in Education) in February 2014 shocked many by issuing a statement against SB 967, foreseeing many unintended consequence. FIRE's main grievance with the California bill is the use of "preponderance of evidence," also known as the balance of probabilities standard. The "preponderance of evidence" sets a bar for guilt much lower than "beyond reasonable doubt" we are most accustomed to in the criminal courts. For the accused to be found guilty of the charge, the college governance merely has to find the accusation is more likely true than not true. Meaning, if you can't convince those judging your case beyond 50 percent doubt that you received consent and did not commit sexual assault; you're found guilty.

Other issues cited by opponents include:

  • There's no room for confusion. Those accused can't claim they were confused in their defense. ("If there is confusion as to whether a person has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion can be clearly resolved.")

  • Guilty until proven innocent. The accused must prove they had consent and did not sexual assault; the complainant does not have to prove they were sexually assaulted. {"... shall adopt detailed and victim-centered sexual assault policies")
  • Universities and Colleges can't take the pressure. Already overwhelmed higher education institutions can't burden the additional financial and due-process protocols when they are already failing with both. ("...implement comprehensive prevention programs...." and "...protocols that comport with best practices and current professional standards.")
  • Vague terminology like "freely and affirmatively communicated willingness", "consent is present throughout sexual activity" and "expressed either by words or clear, unambiguous actions" may leave students confused and later accused.
  • Consent is Sexy

    To be honest I am not thrilled with lawmakers regulating the sex lives of consenting adults. As I see it, whenever the government gets involved in the bedroom, there are sure to be fissures in the rights and privacy of legal aged, consenting adults. But frankly we have created a culture where implied consent has far exceeded reasonable expectations. Where the buyer, or in this case victim, beware. Where children sing rape-culture mantra's on the playground. Where blaming the victim for being too sexy, too available, too drunk or too flirty is vindication. Recently, at a dinner party when asked what I write about, for the first time rather than the question disintegrating into quirky one-liners and outdated Sex in the City references, it evolved into a meaningful dialogue about sexual consent, gender bias, and slut-shaming. It's disgraceful that nearly 20 percent of women being raped wasn't enough to shock everyone into openly discussing consent. As I see it, love or fear California's SB 967, if it takes a law that scares the hell out of people to force them to have productive conversations about consent, rape-culture and victim-blaming at a dinner party or more importantly with their sons and daughters, then I say, "yes," to Yes means Yes!

    Need help? In the U.S., call 1-800-656-HOPE for the National Sexual Assault Hotline.