Yes means yes.
That is the gold standard of consent: enthusiastic, clear, obvious. It is the standard that society should move toward in their sexual interactions. Rather than avoid a no, seek to get a yes. Everyone will have a better time that way.
But just because something is morally preferable, doesn’t mean it should be a law.
Yet that’s exactly what SB 967 is trying to accomplish. The law requires “an affirmative consent standard in the determination of whether consent was given by both parties to sexual activity.” This consent must be “affirmative, conscious, and voluntary.” The language of the bill has been clarified; verbal consent is not required, nor is play-by-play consent for each act required. However, even this less-restrictive version has its own problems.
“Yes means yes” does not solve a problem of lax enforcement.
There may or may not be problems with the much-cited statistic that 1-in-5 college women have experienced sexual assault, but there are certainly severe and endemic problems with how universities handle sexual assault.
For example, given how prevalent sexual assault is in the society at large, there’s something fishy about the fact that in 2009, a study found that 77% of two-year and four-year universities and colleges reported zero rapes in 2006. In addition to under reporting sexual assaults, universities and colleges have been accused of “running out the clock,” or delaying oversight until the perpetrator graduates, thereby ending any responsibility on the part of the university; forcing victims to choose between criminal prosecution and school-based discipline; and assorted other mismanagement of reported sexual assaults. None of this has to do with whether or not consent is murky; instead, it has everything to do with an administrative culture of unwillingness to take the problem seriously. However, by threatening to take away Title IX money, the President has provided a sharp incentive for the campuses to adjust their behavior.
Murky consent is not the issue. Predators are.
The best data suggests that, despite the large number of female victims, only a small number of repeat offenders are committing the assaults. Furthermore, the issue is not that consent is murky; rather, these men are predators and deliberately engineer situations where they can assault women. Given that these men, these predators, are deliberately pursuing situations where a woman doesn’t consent, they are unlikely to be changed by now knowing that ‘yes means yes.’
Additionally, one of the things that has been shown to help is the so-called “bystander program,” in which men and women are trained to keep an eye out for possible sexual assault and help each other get home safely. These bystander programs were already being voluntarily introduced at campuses nationwide; the president’s threat to Title IX money includes a recommendation to implement bystander awareness programs, which all but guarantees their implementation nationwide, whether or not ‘yes mean yes’ passes.
This law reverses the presumption of innocence.
This bill requires the person initiating – whoever that is – to prove that he or she had affirmative consent; the initiator could be declared a rapist simply for failing to prove that that consent was achieved. It reverses the presumption of innocence. And what would qualify as evidence? Outside of video or written contracts, which are unlikely to be available, affirmative consent would be unproveable. And, according to this bill, if affirmative assent is not present, the assumption is that sexual assault occurred.
This bill decreases the standard of evidence required while doing nothing to secure the rights of the accused.
Title IX, as well as SB 967, push for a “preponderance of evidence” standard, the same standard as used in civil cases, which means that the deciding party simple has to believe that 51% of the evidence points one way or the other. The problem with this is that being labeled a rapist can have vast educational, social, professional and personal repercussions for the accused, and this is done without any of the provisions of a civil case, such as “impartial judges, unbiased juries of one’s peers, representation by counsel …. and restrictions on unreliable evidence like hearsay or prior bad acts.”
Given the fact that this law does not add any new solutions to the table, and it does have potentially horrifying effects on the rights of the accused, it should be unconscionable to support this law; but if history is any indicator, people will swarm to support it, because they can’t tell the difference between something that is a good idea and something that should be legally enforceable.