I think pretty much everyone can agree at this point: America’s universities and colleges stink at handling sexual assault on campus.

Currently, the Department of Education is investigating 76 colleges and universities for their possible mismanagement of sexual assault cases under the existing standards of Title IX. The Obama Administration launched a campaign to end sexual assault on campus earlier this month. Although there have been few, if any, decent studies quantifying the number of sexual assaults that occur on campus, even conservative estimates suggest that sexual assault is pervasive at school.

Following the federal government’s call for action, Governor Jerry Brown signed bill SB967, which stipulated that California colleges and universities must adopt an “affirmative consent” standard in their school policy on sexual assault in order to receive state funding or benefits. With this, California became the first state to adopt affirmative consent, commonly referred to as the “yes means yes” standard, in state policy.

The media’s reaction to the new law has been divided, and both sides have failed recognize valid opposing arguments. Reason Magazine called the affirmative consent standard “dangerous” and an unnecessary government intervention into the bedroom of co-eds but failed to address the problematic ambiguity of the existing consent standards. Meanwhile, proponents of affirmative consent quickly dismissed the legitimate concerns of civil libertarians as “idiotic” without much to substantiate their claims.

Despite the hypnotic controversy, the reality of the situation is clear. Affirmative consent is a necessary standard that should be adopted by all universities. However, in order for the affirmative consent standard to be fairly investigated and adjudicated, universities have to step up their game.

What is Affirmative Consent?

Opposed to the “no means no” mantra that has defined public perception of sexual consent for decades, the “yes means yes” standard requires that sexual partners consciously and voluntarily agree to engage in sexual activity through verbal or non-verbal cues. Specifically, under the affirmative consent standard, silence does not establish consent, hopefully to correct the problem of “misunderstandings” that happen because the victim was too scared or shocked to say no.

Much of the backlash to the affirmative consent standard as laid out in the California bill has been in response to outright mischaracterizations of the bill’s content. This is a summary of the actual text of the bill:

  • The bill defines affirmative consent as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” “Enthusiastic consent” is not in the bill.
  • The bill specifically states that consent is defined by “a reasonable person’s standards.” Mundane or common sexual acts like taking off your partner’s pants without expressed consent do not fall under the scope of the standard. Dirty Sanchezing someone without their permission, however, would.
  • Similarly, a sexual partner is expected to know the other’s level of alcohol or drug influence based upon what a reasonable person would know about intoxication.

These carve-outs clearly allow for fair discretion under the standard.

Why Affirmative Consent Is Necessary

The best way to show why affirmative consent is a better standard than previous standards is through an example. Two students agree to have vaginal intercourse, but without warning or asking permission, the male student begins to have anal intercourse. Of course, the female could say no immediately after taking a few seconds to register what happened and the male could oblige. However, the sexual assault has already occurred.

Under the affirmative consent standard, the victim has recourse. Without it, she does not.  

Put simply, previous consent standards don’t take into account the very many scenarios in which a person can be sexually violated or assaulted. The best way to combat this is to change the way sexual consent is defined in society, and for this change to be reflected in law and policy.

Caroline K. Gorman asserts that the bill “reverses the presumption of innocence.” However, the affirmative consent standard does not necessarily burden the accused to show proof of innocence.  To decide the case, the accuser still has to prove that a “yes” did not, in fact, occur.

Of course, when it comes down to matters of consent, “he-said/she-said” scenarios can always become muddled. Nevertheless, this problem has always been the case. The ambiguity of the evidence is no reason to disapprove of the new bill.

Why Schools Should Continue to Investigate and Adjudicate Sexual Assault Cases

Although some question universities’ involvement in sexual assault cases at all, the act should absolutely be included in all universities student codes of conduct in order to foster a safe academic environment. Emma Sulkowicz has famously illustrated the emotional struggle she endures on a regular basis having to live on campus with her alleged rapist. Her story cannot be uncommon given that 75% of total disciplinary actions taken against students found of sexual assault crimes by universities were only minor sanctions. Colleges should certainly expect its students to maintain a certain code of conduct and have the grounds to discipline students who do threaten the overall well-being of the student body.

First, university adjudication does not replace the criminal justice process regarding sex crimes. The university consent standards are not legal precedents, but rather part of the rules that govern university life and student conduct. Under the new California law, university codes of conduct regarding sexual assaults should not and could not foreseeably play a defining role in the criminal justice system. University adjudication is a separate, but parallel, process to the criminal justice system.

Furthermore, universities can fill in the gaps left open by a lacking criminal justice system. And to be clear, the criminal justice system needs all the help it can get when it comes to sexual assault investigations.  In their role as first-responders, university police can collect evidence or gather witness accounts sooner rather than later. They can immediately provide and test for rape kits as soon as possible, especially when states are backlogged. Or, when the state is unable prosecute an offender because there is only circumstantial evidence, universities at least have the recourse to remove the offender from campus. Given the severity of the sexual assault problem, we shouldn’t be choosy about where help comes from.

Opponents of the bill claim, “While campus administrators are in many cases doing their best, they are neither qualified nor equipped to respond properly to sexual assault allegations.” Given the current state of affairs, that may very well be true. But this doesn’t mean we ignore the potential role universities can play in ending sexual assaults; it means we should demand that universities provide better services. 

Ways to Better University Investigation and Adjudication of Sexual Assaults

In fact, there are several steps that universities can and should take toward making their disciplinary and investigatory proceedings of sexual assault cases under the affirmative consent standard fair and balanced. While the California bill implements many new university procedures concerning investigation and adjudication of sexual assault, it is imperative that the changes below are also put into effect:

  • Resources: Currently, most schools do not have the investigatory resources they need to obtain the necessary evidence need in school disciplinary hearings of this serious nature. While Title IX requires that disciplinary committees ruling over sexual assault cases attend a training session on sexual assault policy and Title IX standards, schools would benefit tremendously if University Police were also required to go through extensive training. Rather than fumbling witness reports or destroying evidence, the University Police could actually become a very useful source in combating sexual assault on campus.
  • Allow For A Legal Defense: As it stands now, most schools will not allow attorneys into school disciplinary hearings, even in cases of alleged sexual assault. Given the complexity of sexual assault cases, it is necessary that all schools allow lawyers to argue cases in front of the college tribunal rather than force students to make arguments for themselves. Obviously, if lawyers were allowed to argue cases, students are much less likely to implicate themselves accidentally or be ransacked by a kangaroo court.
  • Regular Title IX Investigations and Oversight: Although the federal government recently launched a large investigation into possible Title IX violations, this is not a regular practice. Senator Gillibrand’s office estimated that 63% Title IX violations are dismissed due to lack of federal oversight. Many effective procedures for handling sexual assault are implemented by Title IX, but it is likely that this investigation will show that not all schools follow these procedures to the “t.” Regular oversight could ensure that schools actually follow through with standard procedures.

Yes, the adoption of the affirmative consent standard will lay the groundwork for preventing and ending sexual assaults on campus. But the government–and universities–should match action with their promises. Improvements, like the ones I’ve listed above, must be made to the way universities conduct investigations and adjudicate sexual assault. Universities are going to have to dedicate resources, ensure that investigations are well-conducted, and that academic punishments are doled out fairly and expediently if we are going to see any serious decreases in sexual assault on campuses–SB967 and “yes means yes” is only a start.

  • Owen Eastwood

    I think it doesn’t matter much at all because it’s almost always impossible to prove either way (whether someone said yes or not). And it’s even more difficult to prove something didn’t occur than to prove something did (proving there was never a yes vs proving there was a no). Either way I think the ‘yes means yes’ should be a standard of life not of law (sometimes – a lot of the time verbal consent isn’t needed).

    Btw, I think this article is one sided in terms of sex/gender. It refers to the victim as she – which is a big problem.

    • Any time Kelli refers to a “she,” she’s talking about a specific person—a hypothetical female in her scenario, and a specific woman who is engaged in activism.

  • Two students agree to have vaginal intercourse, but without warning or asking permission, the male student begins to have anal intercourse. Of course, the female could say no immediately after taking a few seconds to register what happened and the male could oblige. However, the sexual assault has already occurred.

    Here’s another analogy. Two students are making out in bed, and clothing has been removed consensually. The female student, on top of the male student, inserts him into her without his permission. He says no, she backs off. Under the affirmative consent standard (and the example you just gave), that woman would be able to be found guilty of sexual assault and kicked off campus. Do you think that’s reasonable? If not, what is the meaningful difference between these two scenarios?

    Of course, when it comes down to matters of consent, “he-said/she-said” scenarios can always become muddled. Nevertheless, this problem has always been the case. The ambiguity of the evidence is no reason to disapprove of the new bill.

    It seems to me that, if the affirmative consent standard does not change the he-said/she-said nature of cases, then it really hasn’t solved one of the biggest problems in sexual assault cases. If this is the case, the only thing the change in consent standards going to accomplish is making miscommunications and drunken sex something that’s going to get you kicked out of school.

    Or, when the state is unable prosecute an offender because there is only circumstantial evidence, universities at least have the recourse to remove the offender from campus.

    But with affirmative consent + preponderance of the evidence standards, how are we to account for the fact that the alleged offender might not have done anything at all? One of the things that civil liberties people are worried about is due process. This makes it so much easier to kick someone off campus—for a crime that surely will inhibit the alleged offender from finding somewhere else to go—for something they might be innocent of.

    In short, changing the standard of consent to affirmative consent doesn’t really solve the problems with sexual assault adjudication on campus. Even with the addition of legal services for accused parties, it seems ludicrous to me that campus judiciaries are now responsible for determining if there was a 51% chance or more that the accuser gave affirmative consent—especially when drugs and alcohol are in the mix.

    I agree that universities have a moral and legal obligations to not sweep sexual assault under the rug, but I think that what they are morally permitted to do is pretty limited: separate the students if they live in the same dorm, change class schedules, issue no-contact orders, that sort of thing. But affirmative consent + preponderance, with the punishment being expulsion, creates a system wherein you’re levying a huge punishment with very little due process protection. I think that’s a big problem for a civil libertarian.

  • dino

    No matter how well-intentioned any law is, the fact that it is a law (a.k.a. a new coercive entity for the state to use), it will invariably lead to abuses that make the purpose of the law and the benevolent intentions of its supporters null, as the application of the law will ultimately descend into an exercise of abuse and will mostly be used in a manner that the supporters of the law never wished. Just look at the drug laws passed in the 1980’s that intended to go after “high level traffickers” that swallow up small time bit players far more than any serious trafficker. Good intentions cannot overcome the public choice incentives intrinsic to those wielding the coercive power of law. Your good intentions count for little anymore.

  • Stephen Littau

    I’m very curious what the author of this post thinks about the case that occurred at Occidental College where both students were drunk but the male was considered a rapist by the disciplinary board. (see link)

    I believe that many young men will have their due process rights violated much like this young man.

    http://www.thefire.org/cases/occidental-college-student-found-guilty-of-sexual-assault-after-incapacitation-standard-is-misapplied/

  • Matěj Šuster

    (Some) social conservatives apparently welcome this new law — for example, Conn Carroll:
    http://townhall.com/tipsheet/conncarroll/2014/10/07/a-social-conservative-case-for-affirmative-consent-laws-n1901883

    “But this does not mean college administrators are going to be snooping from door to door monitoring student sexual activities. A woman must be motivated to bring a complaint against a man before the college will get involved.

    And when a women does a bring a complaint against a man, the law is so broad and unrealistic that it almost guarantees he will lose. In a sense, “affirmative consent” laws have created a strict liability standard for hook ups gone bad. If she’s unhappy the next morning, unhappy enough to file a complaint, then the man she hooked up with will be presumed guilty of something.

    And women are often unhappy after hook ups. According to one 2010 study, just 26 percent of women “reported feeling positive after a hookup” compared to 49 percent of women who “reported a negative reaction,” and the balance who had mixed feelings. Those aren’t good odds for would be Lotharios.

    But, from a social conservative viewpoint, is this really all that bad? Why on earth are we so concerned about protecting those who participate in the hook up culture? Shouldn’t we want to create an incentive structure for men that encourage them to invest in long-term emotional relationships with the women they want physical intimacy from?

    The message the law sends to college men is simple: “Don’t engage in physical intimacy of any kind with any woman who has not already proven she cares for your emotional well-being.”

    Is that really so bad an outcome?”

  • disqus_w1HRUQo331

    One thing that seems common to many of the interactions between men and women is that men are assumed responsible for a lack of responsibility on women’s part.

    Two college kids get drunk, have consensual sex, and she later decides that she was too drunk to give consent? So, he “raped” her? Ah, if they were both drunk, wouldn’t this mean she “raped” him because he wasn’t capable of giving his consent? This law, like many others, is written in technically gender-neutral language, but with men as the intended target. I would give high odds that when both are drunk, the women get a pass and the men get punished.

    I am not optimistic about the possible future social environment for my son. I guess it comes under the general wisdom that “if you think things are as bad as they can get, you have overlooked something.” I faced a presumption of guilt for most of my employment history. In addition, my son now faces a presumption of guilt in his dating activities. (I didn’t know how lucky I was.) I have advised him to consider dating only off-campus women so he will still be entitled to real legal due process.

    I did extremely well in my dealings with family law because I understood the law and used prenuptial contracts to protect myself against the default conditions that could have paid my exes huge amounts of money to divorce me. Note that family law usually throws out prenuptial contracts if the women did not get separate legal counsel. It is apparently too much to expect even an intelligent, well-educated, adult woman to be responsible for seeking legal counsel if she doesn’t understand the contract. Instead, this becomes the man’s responsibility to ensure that the woman understands what she is signing. Fortunately, I was aware of this idiocy and when my fiancees resisted seeing a lawyer, I refused to marry them until they did.

    But, things appear to be getting even worse for men. Society has not consistently decided whether or not women are fully competent adults who are responsible for their own voluntary actions and/or inactions. For example, British Columbia’s new (2013) family law removes the pesky problem of a man’s unwillingness to consent to marriage by simply declaring the men to be “spouses” against their will. It is apparently too much to expect that if a woman wants to be married she is responsible for getting a man’s consent? Of course, the purpose of the law is mostly about taking money. If it were about marriage, a responsible woman could just insist upon marriage or terminate the relationship. British Columbia has decided that “no doesn’t mean no” when a man refuses marriage.

    Until society consistently treats women equally (like men) as adults who are fully competent and responsible for their actions/inactions, people should be very careful about just assuming (absent verification) that women can be held responsible for anything in their interactions with men.

  • Dmitry Chernikov

    So, in sex, is whatever is not compulsory implicitly forbidden (yes means yes) or is everything not explicitly forbidden permitted (no means no) or something else?