Sex crimes are an epidemic on U.S. college campuses. This is not hyperbole like cable news trying to instill fear of Ebola to boost ratings. The U.S. Department of Education has declared that one in five women is sexually assaulted during her college years.
College women, then, are twice as likely to be raped as prison inmates.
I know from representing many victims over nearly thirty years of practicing law how trauma disrupts and destroys women’s lives. At best, after enormous struggle, survivors go on to healthy adulthoods — with the sexual assault never forgotten but receding in the rearview mirror of their life histories.
At worst, rape victims’ bodies and minds are disrupted by flashbacks, sexual disorders, nightmares, physical ailments and depression up to and often including suicide.
Would you send your daughter to a place where she had a one in five chance of catching a disabling disease with lifelong consequences?
Something has to give. We urgently need change. We can’t keep trying the same old strategies that have failed. Women know that the justice system, for example, hobbles along miserably when it comes to rape cases, continuing to blame the victim and protect the perpetrator. Many victims don’t even report their assaults for this reason. (Though they should. Ideally with a tough, feminist lawyer at their side.)
At California colleges, ‘yes means yes’
California — my home state, which often leads the way on innovations that later spread to the rest of the country — is trying something relatively new. I salute the effort.
Last week, Governor Jerry Brown signed the first statewide law requiring all colleges to adopt a policy requiring that students state unambiguous consent before they have sex.
The “yes means yes” law will be the first in the nation to make affirmative consent language a central tenet of school sexual assault policies. What is the definition of consent? “An affirmative, conscious and voluntary agreement to engage in sexual activity.” It also states that silence and a lack of resistance do not signify consent and that drugs or alcohol do not excuse unwanted sexual activity. Consent must be obtained for each sexual act.
Translation: Silence is not consent. If someone is too drunk or high to clearly say yes, it’s a no. Fondling is not consent to intercourse. The lack of a no is not a yes.
If a woman says or indicates no and a man has sex with her anyway, that was and is rape under policies old and new. Of course this is true for all genders and sexual orientations, but women are the primary victims and men the primary perpetrators of sexual assault. If she says or unambiguously communicates yes, she has consented and no sexual assault has occurred, then or now.
The question has been what to do about the space in the middle, where words were not spoken, or perhaps alcohol or drugs were involved. The old idea that sex was consensual if she cannot definitively prove she said “no” stems from centuries of women being the legal property of men, existing for male pleasure. In some parts of the world today, for example, there remains no such thing as marital rape.
The old approach: Unfair burden to victims
The old approach unfairly burdens women, subjecting them to questions like: “Why didn’t you just say no? Why didn’t you yell louder? Why didn’t you fight back harder?” The new approach asks men, “Why didn’t you ask? Why did you assume consent? Why did you push on when consent was unclear?”
A very drunk or high woman is no more capable of agreeing to sex than she would be to sign an enforceable legal document. Sex with such a woman is nonconsensual. It is rape. Most decent people understand this. To those who don’t, such as young college men who have not been taught: schools are now required to teach them. What a healthy bit of progress.
“Yes means yes” has prompted howls from those who do not take campus rape seriously. To those who oppose it, I ask you: what is your alternative approach to this problem? What is so scary about teaching young people to get clear consent from their partners, and requiring participants to give it (or not) before the games begin?
Spend a day in my law firm, handing tissues to crying rape victims telling their stories, and you’ll stop mocking this concept.
Won’t this law lead to a burst of false rape claims?
Not likely. As Gloria Steinem points out, Canada has had a “yes means yes” law since 1992, with no skyrocketing of sexual assault charges. Trailblazer Antioch College has also had this policy since the 1990s. Students there snarkily ask each other “do you want to implement the policy?” before getting down to business. Most of the Ivy League has adopted affirmative consent rules. The planet still spins on its axis.
Isn’t asking about consent a turnoff?
I don’t know, is it more of a turnoff than a rape epidemic?
Are we really so worried about the delicate sensibilities of college students? Do we think their fragile sexuality will shrivel up and die if they whisper a few quick questions to each other to be sure their partners are into it? Who’s worried about the raging social injustice of college kids sometimes walking away from sex?
I wonder about people who ask this question. Is there a whole class of sexuality people see as benign that centers on having sex with a nonconsenting partner who doesn’t speak up? Why are we worried about losing that?
The mainstream has much to learn from the kink world. In BDSM, clear, explicit consent is an ironclad requirement for each level of the game. While the concept of safe words is well known, less known is the community’s insistence on a yes to every phase of their sexual activities. As a lawyer who studied that world concluded:
BDSM is a community devoted to explicit consent and communication. My research consistently shows that there are detailed rules to obtain consent. There are books, web sites, orientations at BDSM clubs and seminars that look like conference panels – all stressing the importance of consent. Even long-term relationships adhere to an ethic that people need to articulate what he or she does and does not want physically or emotionally at that particular time.
If there’s one thing those in the kink world hate, it’s the book “Fifty Shades of Grey” ignoring that rule, allowing the older, richer, stronger male character to overpower the young naïve heroine without her clear consent. Christian initially asks Anastasia to sign a detailed sex contract, but then later says “lovers don’t need safe words” and “screw the contract.” For a community that proudly calls itself “Safe, Sane and Consensual,” violations of “yes means yes” are a big No No.
Consent is key to the very hotness of BDSM, many, such as this author, claim. If you’re going to play rough, the community demands an explicit “yes” first and throughout, and insists that this communication itself is highly erotically charged.
The rest of us would do well to absorb the concept that consent is a prerequisite to any eroticism. Young people just finding their way around our culture’s crazy hodgepodge of inconsistent messages about eroticism especially need to learn this. Let’s teach them that rape is a horror, that being sure of your partner’s intentions is a nonnegotiable precondition, that checking in periodically from foreplay to conclusion is part of what grownups do.
Consequence of ‘yes means yes’: Saying what you want
One terrific consequence of “yes means yes” is insisting that sexually active people say what they want, rather than going along with someone else’s program. If you’re not capable of articulating your desires and hearing and responding to your partner’s preferences, you’re not emotionally mature enough to have sex.
“Yes means yes” is not going to singlehandedly solve the college rape crisis. But requiring schools to teach young people that no one should have sex with a partner who has not clearly consented shifts the legal burden away from victims, and allows colleges to seize this educable moment.
The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.
Photo: Shutterstock
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5 comments
Tim O
While we can all agree that sex crimes are horrible and most horrible of all is rape. It's a violation of the most intimate act two consenting human beings can make. Rape itself is honestly not a crime about sex as it is about power. One person taking the power from and using their power over another person. Rape is a crime of violence. So this law which downgrades rape to a crime of two drunken people is very silly. The fact that one person can, in a drunken stupor, forget when or if they said "yes" to a alcohol fueled romp and this can be called the same as one of the most vile acts that a person can commit is almost silly. This law is an obvious attempt to take the responsibility for sex between two consenting adults and place it squarely on the shoulders of some drunk teenage boy who can, at the time, barely speak his own name due to a mix of Yaegermeister and sexual energy.
By enacting this law the state is saying "boys this is all on you to make sure she actually said 'yes' to sex". Where has the education of our young ladies gone these days? As a man who has already raised two beautiful daughters I can tell you, no law in the world can replace educating your daughters to not allow themselves to be put in a situation where the signals could be crossed and their attempt to "blow off steam" by going to a party can be turned into the most regretful night of their young lives.
We should not be counting on this teenage boy, his head clouded by drink and desire to get laid, and expect them to make this decision properly every time. Nor should we be ruining his life by saying "if she forgot that she said yes" and now you're going to jail for 5-15 years. Let's get our rape prevention focussed on where it should be and catching those sexual deviants who actually commit rape (& yes that includes those who commit it on college campuses or those who would actually force their dates to have sex against their will). Let's not forget that this law in this fashion could also ruin the life of some young girl should the boy decide he wants to tell authorities that she didn't get a "yes vote" from him as well. I think we should take all of the efforts placed into enacting this new law & instead enforce existing laws while at the same time we educate our young people so they don't find themselves in a situation where they can question if they said yes to sex after a night of teen drinking and partying. If we solve that problem we can eliminate about 50 other problems besides. And biggest of all, let's stop downgrading those awful acts in life like rape or racism by calling moments that are not these by these names. We cheapen the awfulness of these acts when we refer to actions that are not these by these terrible, vile, disgusting moments in human existence. I have serious doubts that we have 1 in 5 college girls raped in their college years. It's likely another inflated factoid that's been used to try to legislate people's personal behavior instead of doing the more difficult task of educating our youth.
Jennie
The true meat and potatoes of the Write Up are lost in the propaganda tactics and the bully pulpit.
Fred
And she was too high,drunk, etc to remember saying yes the next morning.
Al
Seriously writer
Tanya Petrovna
Great article. Lisa Bloom is articulate, smart and loves what she does. It is nice to know we have a staunch legal voice representing justice not only in the courtroom but in the public arena, enabling everyone to learn and support liberty and justice for all.