This column is part of a point counter-point on California’s affirmative-consent law. Read the counter-point here.
For all the criticism it’s received, California’s affirmative consent law is a major step in the right direction. Colleges in California must adopt new “victim-centered” sexual assault protocols in order to receive state funding for student financial aid. These protocols mandate that victims of sexual assault receive appropriate information, care and support in a prompt manner.
No one, absolutely no one, should take issue with these measures. There is a long institutional history of colleges failing to provide swift and adequate services to victims of sexual assault. Now we have a law disincentivizing such behavior. Makes sense.
The bill calls for “a comprehensive, trauma-informed training program for campus officials” aimed at adjudicating cases of sexual assault. It seems pretty clear that the administrators dealing with sexual assault should know about sexual assault. Just like economists should know about currency and physicists about gravity.
Colleges will have to implement an “affirmative-consent” standard for determining whether sexual assault has taken place. The law defines affirmative consent as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” This definition implicitly restates what everyone already knows: Without consent, it’s rape, not sex. By definition. Period.
The law goes on to say that, “affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.” Well, if non-consensual sex is rape, and at any point sex becomes non-consensual, we have a case of rape. Unless you dispute the definition of rape, this conclusion necessarily follows. And why might consent be revoked? I have no idea. It’s none of my business. It’s still rape.
Some have objected that the law leaves “affirmative” uncomfortably nebulous, especially given the characteristic ambiguity of many sexual assault cases. But no one could seriously object to what doesn’t qualify as affirmative consent under the law.
“Lack of protest or resistance does not mean consent.” Unless you believe consent is reducible to physical action, there’s nothing inherently contradictory there. Power dynamics could easily explain a lack of resistance. Most men are, on average, physically stronger than women. This means that men are generally more capable of forcibly coercing women into submission. The threat of physical harm, explicit or not, is just one of many reasons why passive body language is not a green light.
“Silence does not constitute consent.” Yeah, no kidding. Silence could mean any number of things: being swept up in the beauty of the moment, being seriously unsure of what to do in an unsettling situation, being afraid of someone’s menacing advances. Not a very good indicator of consent.
The law lacks a precise, positive definition of affirmative consent, but what this legislation actually boils down to is mostly common sense.
While pundits have been locked in a partisan debate over what exactly California’s legislation will or will not do, they’ve failed to grasp the real reason it matters. Laws cannot govern reality if they are out of step with it, and this law closes the divide between legislation and reality.
California’s law is not perfect. Its insistence that a “preponderance of the evidence” standard determine the outcome of college sexual assault cases needs to be seriously reexamined. As 28 Harvard Law professors described in an open letter to the Boston Globe, this type of provision unfairly threatens the rights of the accused. Frankly, I am skeptical as to whether any sound legal principle justifies such evidentiary standards.
Still, most of the law’s recommendations assist the victim and do not unfairly burden the accused. Moreover, the law operates under a comprehensive, agreeable definition of rape that should have been adopted a long time ago.
Our justice system works best when it actually understands the problems it seeks to correct. California’s affirmative consent law may be imperfect in its current form, but it pushes the legal conception of rape in the right direction. We should not forget its mistakes — but we should remember its successes.
Aaron Sibarium is a freshman in Timothy Dwight College. Contact him at firstname.lastname@example.org.