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.