TRENTON, N.J. — You think the attractive woman at the party who has been chatting you up all night is ready to take things to the next level. She seems to be throwing all the right signals.
But if things turn sexual, are you sure that will hold up under legal scrutiny?
That’s a question at the center of a national debate surrounding “yes means yes” — more accurately called affirmative consent — the policy that requires conscious, voluntary agreement between partners to have sex.
A new proposal in New Jersey makes it the latest state moving to require college campuses to define when “yes means yes” in an effort to stem the tide of sexual assaults.
Whether the policy will reduce assaults remains unclear, but states and universities across the U.S. are under pressure to change how they handle rape allegations.
California adopted a similar measure in August, and New York’s governor directed the State University of New York system to implement a similar standard. New Hampshire lawmakers are also considering it.
Supporters and critics agree the measure could encourage students to talk openly and clearly about sex and that a culture of “yes means yes” — an affirmative agreement compared with the “no means no” refrain of previous decades — could help address the issue of campus sex assaults.
Laura Dunn, executive director of the sexual assault survivors’ organization SurvJustice, said she was raped as an undergraduate at the University of Wisconsin in 2004, after a night of drinking at a party by two men and fellow members of the crew team. She agreed to be identified by The Associated Press.
Dunn believes such a standard could have helped her case during campus judicial proceedings, which failed to find wrongdoing. Her experience led her to become an advocate for sexual assault survivors, she said.
“Had they had an affirmative consent standard they would have realized I would never have consented,” she said.
But skeptics of the policy raise questions — many of which have yet to be settled because the standard is new and it is unclear how many cases have been subjected to the standard— about whether it offers enough protections to the accuser and accused alike.
Affirmative consent standards could unfairly shift the burden of proof to the accused, critics say, pointing out that any sexual contact could then be ruled inappropriate absent some proof of consent.
Some critics also say they could prove to be unfair to victims, who may themselves facing a heavier burden during campus tribunals under Title IX — widely known as the law governing the role of men and women in athletics, but which also aims to protect students from sexual discrimination — which currently defines the standard as “unwelcome and offensive touching.”
Yes means yes “sounds so darn good,” said Wendy Murphy, an adjunct professor at New England Law and an attorney handling sex assault cases. “(But) it doesn’t get better than ‘unwelcome and offensive.’”
Some students, though, express skepticism over the “unwelcome and offensive” standard, saying it fails to convey the seriousness of sexual assault. Student groups at Harvard started a petition last month to get their university to adopt affirmative consent language.
“We certainly agree with the university’s desire to address a wide range of behaviors through their policy,” said Jessica Fournier, a member of Our Harvard Can Do Better, one of the groups organizing the petition. “However, we believe referring to these acts simply as ‘unwelcome’ does not encapsulate the severity of these actions.”
Nationally, reports of forcible sexual offenses on campus rose from 3,443 in 2011 to 4,062, according to the Education Department. In New Jersey, the figure rose from 78 in 2011 to 83 in 2012, the most recent year available. That’s because of increased reporting of crimes due to a culture change and greater support for victims, said Paul Shelly of the New Jersey Association of State Colleges and Universities. Indeed, only 13 percent of forcible sexual assault victims reported the crime to police or campus authorities, according to a 2007 National Institute of Justice study.
What changed, experts said, are students’ attitudes.
“It’s great that it’s receiving this attention, but it’s not a new issue. I think what’s fueling it are student protests about how their institutions have mishandled cases,” said Sarah McMahon, the co-director of Rutgers’ Center on Violence Against Women and Children.
In New Jersey, state Sen. Jim Beach introduced legislation since the debate was making waves nationally. The bill that would withhold state funds from colleges and universities unless they adopt an affirmative consent standard is still waiting for its day in committee.
“We saw what happened in California, realized that it was a problem not only in California but in New Jersey and other campuses around the country,” Beach said. “So we thought that if we did that we would certainly accomplish raising awareness of the entire problem.”
Skeptical supporters said the policy needs to be coupled with education in order for it to succeed.
“The policy is not a magic bullet,” McMahon said.