The Most Game-Changing Part of the ‘Affirmative Consent’ Law

If you’re interested in women’s safety in general and, specifically, women’s safety on college campuses, it’s been a noteworthy week. On Monday, the Huffington Post looked at data from 125 schools, from fiscal year 2011 through 2013, and determined that a “conservative estimate of the cases shows 13 percent of students found responsible for sexual assault were expelled; at most, 30 percent were expelled.”

Stated without the arithmetic: over the past two years, people found guilty of sexual assault – which includes rape, harassment and stalking – were, by a wide margin, allowed to continue their education on the same campus with their victims. In one case where the assault was caught on videotape, the assailant’s punishment was “expulsion after graduation.”

The policies that govern how some schools deal with rape are created and modified by the Association of Student Conduct Administration, a group that describes itself as “the premier authority in higher education for student conduct administration and conflict resolution.” The ASCA recommends that “legalistic language,” such as “rape,” “judicial,” “defense” or “guilty” should be yanked from policies and procedures. To my knowledge, the ASCA doesn’t offer suggestions about what words should be used instead.

If those responsible for student welfare were known to work in tandem with local law enforcement, semantic arguments like these would be just another example of academic nitpicking. In a recent study, however, 73% of schools surveyed had no protocols in place for working with the police and of those that do, the systems are inadequate to the task. Often, a rape victim’s one shot at justice is through a system created by ASCA, an organization whose president-elect, Laura Bennett, is quoted as saying “‘Rape’ is a legal, criminal term,” a harmless enough assertion if she didn’t go on to say, “We’re trying to continue to share we’re not court, we don’t want to be court – we want to provide an administrative, educative process.” Sadly, the “educative” outcome seems to be how to get away with raping a schoolmate.

Having a bad system in place is probably better than having no system, but that’s only from the perspective of the institution, not the victim. It’s easy to suggest that a porous response to rape allegations serves the reputation of any school where these crimes occur – or allegedly occur. Local law enforcement has to make these statistics a matter of public record, while university administrations are under a different set of rules, and, in most cases, no set of rules.

In one survey, 40% of the schools surveyed hadn’t conducted a single sexual-assault investigation in five years, which, not surprisingly, can lead to low numbers of reported sexual assaults. One theory is that an entire generation of women students believe that, as with their sisters in the armed forces, reporting sexual misdeeds is a risky and futile undertaking. A more troubling corollary is that school administrators downplay this criminal behavior as a matter of course, that anything that might smear a school’s reputation needs to be minimized for the good of all involved. The truth probably lies somewhere in between.

Anyone looking at the current state of administrative response to rape and sexual assault on campus could make an easy leap from benign negligence to silent conspiracy. Everyone simply understands what needs to be done, and why. A look back at how Jim Crow was allowed to fester for decades in the United States speaks to the effectiveness of this approach. As with Jim Crow, the killing of any deep-rooted collusion requires increased public awareness, individual outrage and political courage.

This week, California’s Governor Jerry Brown signed into law SB967, a bill that could substantially change the nature of sexual conduct on campus and, we can only hope, across the nation. Instead of “No means no,” the new definition of consent will require “an affirmative, conscious and voluntary agreement to engage in sexual activity.” In short, “No means no” will be replaced with “Yes means yes.” Also, please note the word “conscious.” Anyone drugged, drunk, unconscious or asleep cannot, by definition, consent.

What’s astonishing about this legislation is not that we finally have a law to address the fundamental nature of sexual consent; what’s astonishing is that we needed a law to clarify this in the first place.

Yes, this law isn’t perfect. Unless every dorm room comes equipped with a court reporter, there will continue to be miscommunication. Still, the most important, most game-changing part of this new law may be a single phrase: Lack of protest or resistance does not mean consent, nor does silence mean consent.

This is huge. It should be the beginning of every conversation with college freshmen. High-school freshmen, while we’re at it. As Dr. Deborah Davis, J. Guillermo Villalobos and Dr. Richard Leo have written in a recent publication for the Oxford University Press:

Consent and lack of consent can look the same. A gesture or comment might seem like nothing, but it might be the one chance a woman has to stop something she no longer feels comfortable doing. And it’s important to understand that this new standard also protects men ­– men who may have thought their partners were consenting and genuinely shocked to learn otherwise. The law, and the public, must demand a new conversation for our children and for everyone’s children. When asked why so few expulsions were given out for sexually based offenses, ASCA’s Bennett said, “The worst thing we can do is tell someone they can’t go to school at our institution.”

She’s wrong. The worst thing we can tell someone is that if they’ve been sexually assaulted on campus, they’re on their own.