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I’ve been mulling over a new bill in California, SB967, that would mandate colleges and universities receiving state funds use the following definition of “affirmative consent” for evaluating sexual assault and rape in the campus justice system:
“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
I myself have appealed to affirmative consent as a step for reducing sexual assault and rape, particularly among collegiate populations, where casual hookups are prevalent. Yet while I’m a staunch believer in teaching affirmative consent — what it is, how to get it, why it matters — I fear this bill would could be interpreted by our “justice” system in very dangerous ways.
Like most/many bills, this one has good intentions, but I fear the unintended consequences could make a mockery of consent for sexual activity, something feminists like myself have fought very hard to legitimize.
On the one hand, enshrining the definition of affirmative consent in law and mandating that colleges abide by it would provide a framework for prosecuting rapists, too many of which walk free. However, a law like this could make criminals out of those who are not, and it would not change the culture that’s at the root of sexual assault.
Hands up if you’ve had voluntary sex with someone without verbally agreeing to it. I have!
The problem with SB967 is that many partners rely on nonverbal cues to initiate sexual activity. I’ll concede that verbal consent is particularly important if you’re with a new partner, but I’ll be the first to admit my boyfriend and I very rarely obtain verbal consent before engaging in sexual activity. This law could make our actions worthy of prosecution.
The intricacies of intimacy (try saying that three times fast) make it such that we must be very, very careful when defining consent in law.
For what it’s worth, the bill has positive aspects — including the creation of “prevention and outreach programs addressing sexual assault, domestic violence, dating violence, and stalking.” I’d love to see this implemented on campuses across the U.S. of their own accord, without the state forcing them to do so (provided those programs focus more on what consent is and how to obtain it, rather than advice for avoiding rape, i.e. watch your drink, don’t walk home alone, etc, which often paves the way for victim-blaming).
In short, education is key, not forceful legislation. I disagree with this bill’s means for dealing with sexual assault (the force of the state), not its ends. If we want to truly end sexual assault at its roots, we have to start by changing culture first.
Julie Mastrine is a writer and feminist. She is the Activism Marketing and Social Media Manager at Care2 and is a social media volunteer for Stop Street Harassment. Follow Julie on Twitter and check out her e-book.