State lawmakers on Thursday passed a bill that would make California the first state to define when “yes means yes” while investigating sexual assaults on college campuses. The Senate unanimously passed SB967 as states and universities across the U.S. are under pressure to change how they handle rape allegations. The bill now goes to Gov. Jerry Brown, who has not indicated his stance on the bill.The actual law is described more clearly here.
You may have heard of this bill as the one that would require students to draft up a written sex contract before bed or constantly proclaim “yes, yes, yes!” at every slight readjustment, thereby practically redefining most sex as rape. The Fresno Bee editorial board interpreted the bill to mean that “ ‘yes’ only means ‘yes’ if it is said aloud.” The Daily Californian, the independent student newspaper of UC–Berkeley, also claimed that affirmative consent is necessarily verbal. RH Reality Check advanced the game to approvingly say that affirmative consent requires “a verbal or written yes.” If consensual sex entailed that level of consent, millions of couples would be unsuspectingly raping one another every night of the week.Well, this should TOTALLY make things less complicated for everyone. I wonder how long it will be before young women start complaining that they are being sexually harassed by men demanding signed and notarized documents before kissing them.
But the bill doesn’t actually require those things. It calls for “an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity."* (While the bill initially warned that “relying solely on nonverbal communication can lead to misunderstanding,” that language has since been stricken.) Update, June 24, 2014: As of June 18, the bill's definition reads: "'Affirmative consent' means affirmative, conscious, and voluntary agreement to engage in sexual activity."
It’s understandable that commentators would jump to the conclusion that affirmative consent requires sex partners to engage in a constant Q&A—or else a finely drawn sex contract—because the bill doesn’t define what “clear, unambiguous” consent would actually look like. Perhaps some remember Antioch College’s infamous 1991 sexual assault rules, which did require all partners to verbally request and assent to every stage of sexual activity—“body movements and non-verbal responses such as moans” didn’t cut it. But the California legislation’s language becomes clearer when it specifies which situations do not constitute consent. “Lack of protest or resistance does not mean consent, nor does silence mean consent,” the bill reads. “The existence of a dating relationship between the persons involved, or the fact of a past sexual relationship, shall not provide the basis for an assumption of consent. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.” Parties can’t consent when they’re asleep or unconscious, or incapacitated from drugs or alcohol.
Male Date Rape Player #1: May I compliment you on your halter top?
Female Date Rape Player #1: Yes. You may.
Male Date Rape Player #1: It's very nice. May I kiss you on the mouth.
Female Date Rape Player #1: Yes. I would like you to kiss me on the mouth.
[ they kiss on the mouth ]
Male Date Rape Player #1: May I elevate the level of sexual intimacy by feeling your buttocks?
Female Date Rape Player #1: Yes. You have my permission.
[ Male touches Female's buttocks ]
Male Date Rape Player #1: May I raise the level yet again, and take my clothes off so that we could have intercourse?
Female Date Rape Player #1: Yes. I am granting your request to have intercourse.
[ scene ends ]
Dean Frederick Whitcomb: Contestants?
Ariel Helpern-Strauss: [ buzzes in ] Date Rape!