Historic California Rape Law Tells College Campuses: ‘Yes Means Yes’
New York, USA – 29/09/2014 – as published by VICE News
California has enacted a historic law that forces the state’s colleges to adopt a policy of unambiguous, affirmative consent by students engaged in sexual activity.
State lawmakers approved the so-called “Yes Means Yes” law last month, and Governor Jerry Brown signed it Sunday. The state is the first to pass a law that makes affirmative consent central to school sexual assault policies.
“I don’t think there are words to describe how monumental this is for survivors of sexual assault — female, male or otherwise,” Savannah Badalich, a student at University of California, Los Angles (UCLA) and the founder of the group 7,000 in Solidarity, told VICE News.
“This definition of consent gets rid of that atmosphere of silence or shame when you are generally asked what you could have done to prevent your assault,”added Badalich, who was the victim of a college sexual assault. This is the first state to pass a law but it should not be the last.”
The legislation, sponsored by state senator Kevin de León, defines consent as “an affirmative, conscious and voluntary agreement to engage in sexual activity.” It attempts to reverse an unfairly weighted burden of responsibility in cases of sexual assault, which has traditionally required an explicit “No” from victims.
“Every student deserves a learning environment that is safe and healthy,” de León said in a statement Sunday night. “The state of California will not allow schools to sweep rape cases under the rug. We’ve shifted the conversation regarding sexual assault to one of prevention, justice, and healing.”
The law also states that lack of resistance, silence, and being unconscious or asleep do not equate to consent. Alcohol or drugs do not excuse unwanted sexual activity either. Physical affirmative actions such as nodding or stepping towards the other person can be interpreted as granting consent.
The bill, SB967, requires training for teachers and administrators reviewing complaints, and applies to any post-secondary school in California that receives state money for students, regardless of whether they are public or private institutions.
Universities across the state welcomed the legislation, and said that they had been working closely with the policy makers on the bill for a while.
“We’ve worked with the legislatures to make sure this is something we can implement across the campus,” said Mike Uhlenkamp, Director of Public Affairs at California State University. “There is not a lot of change but instead of these policies being voluntarily they will now be mandatory, which is an important step.”
Asked whether similar laws should be enacted elsewhere in the country, Uhlenkamp said that it was up to individual states to find their solution but repeated, “this is an area we can never do enough in.”
The law comes amid increased publicity surrounding an alleged date rape conspiracy at a University of Wisconsin-Milwaukee fraternity, and a movement at Columbia University that is pushing the administration to be more transparent about how they deal with sexual assault complaints.
Emma Sulkowicz, a senior studying visual arts at Columbia, gained international attention this year for her art performance thesis, which involves her carrying a mattress — one on which she says she was raped — around the school’s campus until her assailant is either suspended or leaves.
Sofie Karasek is a co-founder of Endrapeoncampus.org, an organization that provides free, direct support to campus activists who are filing federal Title IX complaints against their institution in order to hold colleges accountable under the law.
“The bill demonstrates the tangible impact that students have had over the last year in addressing sexual violence on college campuses,” said the UC Berkeley student, who is currently the lead plaintiff in a complaint against the university. “I really hope that other state schools follow suit.”
Title IX of the Education Amendments of 1972 is a federal civil rights law that prohibits discrimination on the basis of sex in any education program or activity that receives federal funding.
Sexual assault on college campuses is not a new issue, but it re-entered the spotlight in the US after the White House recently declared sex crimes to be an “epidemic” on US college campuses. On average, one in five students in the US falls victim to a sexual assault during their college years.
Earlier this year, the Department of Education said it was investigating at least 55 colleges and universities for violating federal law in their handling of sexual crimes.
Universities have tended to prefer dealing with such issues on campus instead of taking the problem to local law enforcement. This has been unpopular both with victims of sexual assault, who accuse college administrators of inaction and poor handling of cases, as well as those accused. Several men, such as Lewis McLeod, whose case was reported by The Independent, have lawsuits pending against schools for disciplinary suspensions, which, in McLeod’s case, barred the Australian student from graduating and cost him a job offer at a top Wall Street firm.
“It’s not taking the issue out of the framework of the school,” said Karasek, who pointed out that under Title IX US schools are not supposed to be indifferent to sexual assault. “This standard is actually helping colleges. It will be easier for the university to help the victim and make sure the assailant is no longer a threat to the student body.”
Anna Bahr, who conducted several investigations into campus rape at Columbia, said that the law still has a ways to go.
“One problem is that this bill says virtually nothing about how universities should handle the students they find responsible for these very serious crimes,” said the former student. “So, if the school determines that a student rapes his classmate, there is still a huge amount of discretion in what sanction is appropriate. This bill is just the beginning of figuring out how to arbitrate assault on campus.”
Still, critics of the bill called the law overreaching, and said that it places universities in murky legal waters. Some Republicans have questioned the part statewide legislation should play in defining sexual consent between two people.
Gordon Finley, an adviser to the National Coalition for Men, and a professor of psychology emeritus at Florida International University, argued that the “campus rape crusade bill” presumes the guilt of the accused. He asked Governor Jerry Brown to veto the bill.
Others strongly disagreed with Finley’s characterization of the law.
“There has already been a bit of backlash here,” Badalich said. “People are asking whether this will make situations worse for those accused, but it is not about that. They are innocent until proven guilty, just like a survivor is not [guilty of making] a false report until proven otherwise.”
Badalich said that the law is about what a healthy relationship is, what consent means, and bystander intervention. She explained that it evens the playing field, and helps get rid of “word-on-word battles,” between victims and their assailants. She added that it also helps establish an atmosphere of openness, where victims will not be afraid to report crimes, leading to swifter, more evidenced-based convictions.
Most importantly, Karasek said, the law has generated a public dialogue about the importance of obtaining consent before taking part in sexual activities.