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Calif. Lawmakers Consider 'Affirmative Consent' Standard for Campus Sexual Assault Cases

Calif. Lawmakers Consider 'Affirmative Consent' Standard for Campus Sexual Assault Cases

August 12, 2014 — The California Assembly this month is expected to consider a bill (SB 967) that would require colleges and universities that receive public funds to determine whether "affirmative consent" occurred when investigating or adjudicating alleged sexual assaults on campuses, the AP/Contra Costa Times reports.

In May, the state Senate voted 27-4 in favor of the legislation. The measure also incorporates a White House task force's recommendations on how colleges can better address sexual assaults on their campuses.

If the measure becomes law, California would be the first state to have an affirmative consent standard, according to the AP/Times (AP/Contra Costa Times, 8/11).

About 'Affirmative Consent'

Under the affirmative consent standard, sexual partners would be responsible for ensuring the other person explicitly consents, in contrast to the more common "no means no" standard in most sexual assault cases, which relies on a person expressing lack of consent (Women's Health Policy Report, 2/12).

Specifically, the standard would be defined as "an affirmative, unambiguous and conscious decision" by each party to consent to sexual activity. The consent must be "ongoing" and could be "revoked at any time."

The measure specifies that silence or the lack of physical resistance would not constitute consent, nor could consent be given in a situation in which a person is asleep, drugged, drunk or unconscious. However, the legislation does note that consent could be nonverbal (AP/Contra Costa Times, 8/11).

The legislation also would establish policies aimed at improving protections and services for sexual assault survivors, as well as on-campus education and intervention efforts (Women's Health Policy Report, 2/12).

Debate Over Bill

State Sen. Kevin de León (D), a co-author of the bill, said, "California needs to provide our students with education, resources, consistent policies and justice so that the system is not stacked against survivors."

However, in an editorial published shortly after the state Senate vote, the Los Angeles Times questioned whether the legislation is "reasonable" and "enforceable."

Ada Meloy, general counsel of the American Council on Education, which represents college presidents, said, "Frequently these cases involve two individuals, both of whom maybe were under the influence of alcohol or drugs, and it can be very tricky to ascertain whether consent was obtained."

However, University of California-Berkeley student Meghan Warner, who leads student workshops on consent, said that the measure was needed because "[m]ost students don't know what consent is." She added, "I've asked at the workshops how many people think if a girl is blacked out drunk that it's OK to have sex with her. The amount of people who raised their hands was just startling" (AP/Contra Costa Times, 8/11).