In the scramble for colleges and universities to stem the tide of sexual violence that has come onto their campuses, California has become the first in the nation to enact a “yes means yes” standard into law. On September 28, 2014, Governor Jerry Brown signed legislation that requires colleges and universities receiving state funds to adopt sexual assault policies that include affirmative consent as the key element in determining whether sexual activity was consensual.
Just what is affirmative consent? What will count as a yes? It’s hard to say. It seems obvious, but the parameters of affirmative consent are illusive and hard to define. Even the Department of Education, which has been so aggressive in imposing onerous Title IX requirements on colleges and universities, has been resistive to defining affirmative consent. It is all a little reminiscent of Justice Stewart’s standard for pornography: “I know it when I see it.”
The California law adds little to the dialogue. It contains a succinct definitional statement, that is then followed by a long list of things that affirmative consent is not, which seem every bit as essential to understanding the term as the definition itself. Affirmative consent is: “affirmative, conscious, and voluntary agreement to engage in sexual activity.”
It is not silence, lack of protest or resistance, the existence of a dating relationship or previous sexual relations. It cannot exist when a sexual partner knew, or reasonably should have known, that the other was asleep, unconscious or incapacitated due to drugs, alcohol or medication, or unable to communicate due to a mental or physical condition.
The bill originally required that affirmative consent be “communicated.” This was taken out, and the final version permits affirmative consent to be nonverbal. Nonverbal communication can take many forms and will always be subject to misinterpretation.
Because each institution that receives state funds must adopt its own policies that include the new affirmative consent standard, it is predictable there will be subtle variations in the local language adopted at different institutions, and resultant uncertainty, confusion and potential inconsistency in enforcement. It is not clear whether state regulations will follow that might add to the definition of affirmative consent.
Both the University of California and the California State University already had affirmative consent policies in place by the time the new law was passed. Both actively supported the bill. Several other institutions -- e.g., Grinnell, Dartmouth, Yale, Claremont McKenna -- also have affirmative consent policies already in place. It has been proposed or is under active discussion at dozens of other institutions. Governor Cuomo of New York has recently announced that all of the SUNY campuses must enact policies that include the affirmative consent standard.
The California law requires training of both students and faculty about affirmative consent, including all incoming students as a part of orientation. Since Title IX already mandates much training around campus sexual behaviors, presumably this will be a natural and complementary add-on. How each campus goes about that training will vary. Students may be advised about the policies in live or video training, compelled to watch role-playing episodes performed by actors, required to take online tests to confirm their understanding, or even obliged to participate in live practice sessions on how to ask for, give and refuse consent.
But even if affirmative consent is, and likely always will be, subjective, the new California law makes a monumental change that is much less ambiguous, and will fundamentally change the way consent is determined in disciplinary proceedings.
The law places a burden on both parties to ensure that they have the affirmative consent of the other throughout any sexual activity. Consent can be revoked at any time, and must be renewed as sexual activity escalates. This means that when one sexual partner claims in a student discipline context that the other did not have affirmative consent to engage in any challenged sexual activity, the burden will shift to the initiator of the sexual activity to offer objective evidence of consent. He or she cannot claim confusion, or that his or her sexual partner did not establish boundaries. If there was no clear invitation to proceed, the college or university must conclude there was no affirmative consent.
There will still be situations where one student claims to have had consent and the other denies it. There will be cases involving alcohol, where one student claims that the other was not incapacitated. There will continue to be he said-she said disputes with no witnesses. But this new burden placed on the party claimed not to have had consent, to offer evidence of consent, transforms the institutional disciplinary process.
Some claim that the law is too much governmental intrusion into private sexual behavior. Maybe. But it is hard to argue in these times of egregious sexual misbehaviors that creating a clearer dialogue between sexual partners, and encouraging especially inexperienced young people to exercise great caution in their sexual lives, is a bad idea. The new law does not compel colleges and universities to be in the room or dictate what happens when students engage in sexual conduct. Rather, the college and university obligation is to adopt policies, only tested or enforced after the fact, when affirmative consent is claimed to have been lacking.
There are other important elements in the new law that should not be overlooked. Campus policies must be “victim-centered,” include privacy protections, interview standards, coordination with law enforcement, participation of victim advocates, and discipline exemption for student witnesses who participated in underage drinking. Campuses must provide trauma-informed training for those involved in investigation or adjudication of complaints. On- and off-campus support must be provided for students, both victims and perpetrators.
But the most remarkable aspect of the new law is the shifting of the burden in disciplinary hearings to the initiator of sexual activity to demonstrate that he or she had the permission of the other party to proceed.
Will the law make any difference? No one knows. There will likely be some chaos, confusion and controversy in the short term, before getting to consistently fair and balanced results. But the shift in expectation and proof is a game-changer and will most likely produce different student discipline results -- whether for better or worse remains to be seen.
Christine Helwick is former general counsel for the California State University system and now advises college and university clients at Hirschfeld Kraemer.
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