Yes, to California’s new anti-rape ‘yes means yes’ law

NakedLaw, News, Opinion, Politics

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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