Yes, let’s talk about sex, because for collegiate young adults with raging hormones, we don’t talk about sex nearly enough—or not positively, at least.
The White House has declared sexual assault an epidemic on college campuses. The reality of sexual assault and rape on college campuses strikes close to home, as UC Berkeley is one of three California universities under investigation for its responses to sexual violence cases. “These crimes often go unreported on college campuses; in large part due to the victim’s belief that authorities will not take action,” California Assemblymember Das Williams announced at the Higher Education Committee Roundtable on September 24, 2014 at UC Berkeley. “We must ensure that our campuses are offering support and resources, investigating crimes, and prosecuting perpetrators in order to get the true magnitude of the problem.” According to seven student panelists at the roundtable discussion of the issue, the university has inadequately dealt with perpetrators, which prevented the majority of assault victims from stepping forward and seeking justice. In fact, as Assemblyman Williams restated to administrators, “[the] students are unaware of a single rapist who has been expelled.” This is an unacceptable issue, which is all too familiar to universities nationwide.
The prevalence of sexual violence is certainly not new according to a Centers for Disease Control (CDC) study asserting that twenty percent of women and six and one tenth percent of men experience some form of sexual assault during their college years. Rallying cries across United States universities have been echoing since the 1980s, when Jane Clery was raped and murdered in her dorm room at Lehigh University, an event that led to the passage of the Clery Act in 1990. This law required colleges and universities to make information on campus crimes public (rather than obscure the facts to maintain their reputations), and to follow through with investigative procedures in cases of sexual crimes. In 1993, Antioch College added sexual assault protocol to its Student Code of Conduct and underwent public ridicule and judgment for attempting to control its students’ sexual endeavors. This issue remains central to opposition to sexual assault legislation today, including Senate Bill 967, informally known as “Yes Means Yes.”
Many consider “Yes Means Yes” a turning point in how California colleges and universities deal with sexual assault. While it will not necessarily deter attackers, this bill limits the definition of consent to a point that holds attackers liable. Critics disapprove of this aspect of the bill because it considers attackers guilty until proven innocent, and even then, the “he-said, she-said” argument typically associated with assault cases would remain an obstacle. However, the way SB 967 redefines consent is exactly what makes it the first law of its kind. It states that consent is an “affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity”. By shifting the emphasis of consent from requiring the potential victim to say “no” to both parties’ clear agreement, the bill elevates sex to a mutually active decision. Proponents of the bill assert that this makes sex both safer and more enjoyable. Furthermore, the bill does not accept silence or lack of ability due to drugs or alcohol as consent, clarifying that absence of a “no” does not imply consent. What makes this bill critical in terms of handling sex crimes is that it sets up a uniform standard which current campus investigations lack: that the only kind of consent is affirmative consent, or an explicit “yes.” Previous reliance on the need for a “no” to actually consider assault as criminal muddled the idea of what exactly constituted a “no”—silence? Inhibited mental states due to drug and alcohol influence? What if a victim, for some reason or another, just couldn’t say “no”? None of these instances would have been considered rape without SB 967; in fact, a victim would probably have been reprimanded for exaggerating the situation, for leading on his or her attacker by dressing a certain way or “being too drunk.” The blame for assault too often landed (and still lands) on victims. This seems to bother opponents of “Yes Means Yes,” who fear the justice of the accused might be lost within the vague terminology of the bill, such as “expressed either by words or clear, unambiguous actions,” which they say leaves room for confusion and possibly resulting in unfair charges on the accuser. However, the main point of the bill is for the parties involved in the sexual activity to both seek a straightforward “yes.” This eliminates confusion from the situation and effectively places blame on the guilty party if the affirmative consent is not stated.
The political significance of “Yes Means Yes” is that it addresses victim-blaming as a critical issue. Although the bill will not necessarily discourage sexual aggression, it will fundamentally redefine the way in which assault cases are prosecuted in order to give victims proper justice. In fact, it is already working by inspiring us to talk more about sex—this bill requires people to establish that they’ve talked about sex before actively deciding to engage in it. Though opposing arguments consider this bill to be too controlling over young adults’ sexual endeavors, the fact remains that without that “yes,” a sexual act is assault. Consent is sexy, and it is also mandatory at every stage of sexual activity. This is the basis for a sex-positive culture.
There is reason to believe that social conditions have evolved from five and ten years ago such that California sees fit a law built to deal with sexual assault as a crime in which the victim deserves the justice and not the blame. But while a growing liberal and feminist movement denounces victim-blaming and strives to examine sexual assault as a real societal issue, the modern populace appears trapped within the abyss of rape culture, where joking about rape is okay and unconsciousness paired with reeking of vodka is tantamount to an invitation for sex. “Implied consent is so evasive that women who walk by a construction site with too much cleavage deserve catcalls, [and] women who wear short skirts in a club earn a grope,” sex and relationship expert Marrie Lobel writes. The root of the problem is, as Lobel elaborates, the idea of “implied consent,” or that a woman (and while the effects of rape culture are not limited to women, women are used as the example to continue her argument) actually “deserves” or “earns” to be treated in such a way. There is a reciprocity of actions implied, as if the woman’s decision to wear a certain outfit is subject to acts of sexual assault, and she should be accepting of these consequences as something she deserves. Unfortunately, rape culture has similarly infiltrated colleges and universities beyond student life and up to an administrative level, which has led to the shocking disparity between the widespread presence of sexual assault and the limited extent of punishment.
“ [A] lot more needs to be done to change the pervasive rape culture on our college campuses,” Assemblymember Williams said in response to the students’ concerns with UC Berkeley’s administrative procedures. The passage of “Yes Means yes” on September 28, 2014 serves as a significant step towards this. The potential scope of this law on college campuses aims to discard the idea of “implied consent” that promotes rape culture and foster a sex-positive culture of mutual agreement instead. This would make sex a desirable activity for two, rather than a consequence for one.