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BERNSTEIN: Against affirmative consent

California’s new affirmative consent policy does not reach the root of schools’ problems with sexual assault

California recently enacted a “Yes Means Yes” law, creating an affirmative consent standard at state-funded colleges and universities. With this standard, sexual partners must verbally give their consent to sexual activity; anything less is sexual assault. While this policy may offer better boundaries for what qualifies as sexual assault — and those boundaries can at times be unclear — it does so at significant costs.

Ezra Klein, founder of Vox and a proponent of the law, admits that “two college seniors who’ve been in a loving relationship. . . who, with the ease of the committed, slip naturally from cuddling to sex, could fail [the law’s] test.” This is because affirmative consent, though it should be encouraged, is unrealistic; even discounting the ambiguities of hook-up culture and alcohol- or drug-induced encounters, people do not generally explicitly state their consent before having sex. And, if they do, it is unlikely they will repeat this statement of consent throughout intercourse, which, with this law, could be necessary in some situations.

To be clear, a culture of affirmative consent should be promoted. A lead editorial from last semester cites a study in which only 10 percent of female students reported giving consent through body language, while 61 percent of male students said they interpreted consent through body language; on the other hand, 51 percent of female students reported giving consent verbally, and 9 percent of male students said they received consent that way. Obviously, communication between these two groups is ineffective. But that does not mean policy will shift this dynamic, or that this is the right one to do it. The California law distracts us by implying that diminishing ambiguities should be the focus of anti-rape advocacy, when in fact most rapists are recidivists without issues of communication leading to their actions — suggesting that the issue we should focus on is adjudicating rape, not creating a new definition for it.

Even so, it is still easy, particularly when it comes to sexual assault on college campuses, to favor overreaching over under-reaching, especially when schools appear to be apathetic to this issue. But, regardless of our rightful frustration with colleges’ responses to sexual assault cases, we cannot ignore the importance of the rights of all parties in a case — including the accused, who will now be held to a drastically different standard.

Given how colleges handle sexual assault, it may seem that defendants have too many privileges. This past summer, James Madison University punished three students who filmed their sexual assault of a female peer with “expulsion after graduation” — in other words, no punishment. Students have sued the University for alleged attempts to dissuade victims from coming forward. According to Nicole Eramo, associate dean of students and the current chair of the University’s Sexual Misconduct Board, since joining the Board in 2004 and becoming Chair in 2006 she is “not aware of a student being permanently expelled for sexual misconduct.”

However, while schools obviously need to address sexual misconduct on their campuses much better than they do now, this does not mean requiring affirmative consent — which could penalize many non-offenders — is the answer. The “Yes Means Yes” law would not affect issues of due process, but it could lead to unfair convictions, since cases of consensual sex in which this consent was not explicitly stated have been redefined as sexual assault. Our current definitions of rape and sexual assault are not controversial; it is the lack of response to those acts that is. Cases such as the one at JMU meet the widely-accepted standard of sexual assault; schools simply do not acknowledge this in their rulings.

Requiring affirmative consent distracts from these schools’ failures and instead effectively penalizes insensitive behavior. Beyond what we can clearly identify as sexual misconduct, we cannot broadly criminalize treating people badly. Many sexual encounters can be demeaning or unpleasant, but that does not mean they are necessarily assault. Kat Stoeffel outlines such situations in her persuasive piece, “It Doesn’t Have to Be Rape to Suck.” She demonstrates how women find themselves in situations that “fall outside the conventional definition of rape but nonetheless reflect a gender power dynamic that leaves women sexually vulnerable.” Should we create a culture in which this is not the case, power is balanced and everyone treats each other well? Absolutely. Will this law do this? Probably not. The testimonies will still be “he said, she said,” since either side can claim virtually anything about what verbal exchanges occurred pre-, during and post-coitus.

Though it may avoid definitional ambiguities, this law does nothing to avoid the evidentiary problems of finding out what truly occurred, since this information usually can only be gotten from the parties themselves. If schools don’t want to convict offenders (and it appears they don’t), they will still simply side with the offenders’ testimonies.

Sexual assault is rampant on campuses, and offenders should be punished — and they can be, under current standards. Much of the time the issue is not a lack of evidence or too high a standard for conviction; it is a lack of willingness on the part of schools to properly handle this issue. Affirmative consent places the burden on students in response to colleges’ failures to properly adjudicate even the most blatant cases of rape. This is not an effective or fair response.

Dani Bernstein is a Senior Associate Editor for The Cavalier Daily. She can be reached at d.bernstein@cavalierdaily.com.

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