YouSpeak: What Is Sexual Consent?

California bill would require both parties to say yes before sex

September 22, 2014
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California recently became the first state in the nation to pass a bill defining sexual consent on college campuses. If Governor Jerry Brown signs the legislation (he has until the end of the month), the state would require all colleges and universities to set a standard of “affirmative consent” for sexual activity. Both parties would have to say yes to sex before having relations.

The bill states that students would have to consent upfront (either verbally or nonverbally) and that the affirmative consent has to be “ongoing throughout the sexual activity,” meaning that both people have to agree to each step of a sexual encounter as it progresses. It further stipulates that consent can be revoked at any time and makes clear that intoxication cannot be used as an excuse for believing there was consent.

College administrators investigating sexual assault cases will now be required to ask: “Did he/she consent?” rather than, “Did he/she say no.” Failing to do so could result in a college or university losing federal funding.

The bill has generated plenty of controversy. Victims’ advocates have hailed it because it challenges the notion that a person has to resist an assault in order to have a valid complaint. Too many times, they argue, victims are expected to show that they had verbally or physically resisted the other person’s advances, so they have a hard time convincing campus judicial boards that they’ve been raped.

But critics argue that the legislation’s “affirmative consent” standard unfairly burdens those who are accused of sexual assault and that it will deny the accused person due process. Others argue that it’s unreasonable to expect any two people to stop at each step of a sexual encounter and ask, “Can I do this now?”

This week’s “YouSpeak” asks: What do you think of the California bill requiring each party to say yes before having sex?

“YouSpeak” typically appears on Mondays. If you have a suggestion for a topic, leave it in the Comment section below.

Jay Colamaria can be reached at jcola@bu.edu.

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Boston University moderates comments to facilitate an informed, substantive, civil conversation. Abusive, profane, self-promotional, misleading, incoherent or off-topic comments will be rejected. Moderators are staffed during regular business hours (EST) and can only accept comments written in English. Statistics or facts must include a citation or a link to the citation.

There are 12 comments on YouSpeak: What Is Sexual Consent?

  1. We have had more problems with victims unable to “prove” they were assaulted than causing “burdens” on those accused of it. I personally am disgusted by the increasing number of sexual assaults that are ignored or not handled properly by authorities or universities trying to protect their reputation. I think this is an excellent step forward.

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  4. I guess that the California legistrators have nothing better to do. The bill would also require the governing boards to implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence, and stalking. By requiring community college districts to adopt or modify certain policies and protocols, the bill would impose a state-mandated local program. Another top-heavy action which keep lawyers and other adminstrators busy and employed instead if addressing more immediate needs. Read http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967

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  5. Genuine question: what would happen if two students (no matter the gender) had sexual intercourse without explicit consent from any of them, but without unilateral aggression/intoxication. Would they then be intended to denounce each other, to avoid the other’s denounce going unchallenged?

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  7. There are several issues.

    A generation of young men that have not been disciplined to understand that they can’t TAKE what they can’t have.

    A generation of young women that have been taught that empowerment does not include discretion. It is generally not a good idea to go to a party where booze or drugs are flowing. That is discretion. Note: if you are attacked, that does not excuse it. I only elaborate on the woman’s end of it because the problem with men requires a long term solution and women can do nothing about it except protect themselves.

    Personally, I think this law is idiotic. Unless you have some form of “evidence” that proves that both consented it will remain a “he said, she said” proposition. And if by some chance the person penetrated claims they said no during penetration, the penetration does not prove rape. Also, I can’t imagine anything more “tedious” than going through a ritual of mutual consent at every stage of COITUS. The problem with these laws, the guilty will find loop holes and a good defense attorney will put the accuser through hell trying to defend his client.

    In the end, the best idea is to prevent yourself from getting into this situation. No one should put themselves in a vulnerable position WITH ANYONE unless they have EARNED their trust. It should take a period of months for anyone to trust someone. They should prove it.

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    1. Joel, are you saying that it is a bad idea for both men and women to go to parties with booze and drugs or just women? If you mean just women, then you are perpetuating the double standard that is a common complaint among women. I’m a man. If I went to a party, became inebriated and someone sexually assaulted me, then I became a victim of a crime. Plain and simple. Becoming intoxicated is not a crime. I’m sorry, but booze and drugs have been a part of human celebration since probably before we even became modern humans. Many animal species get intentionally intoxicated, so we are not unique in that regard.

      As to your second point, the law is open to interpretation by a judge and jury. The burden of proof still falls on the plaintiff, as it always has. And if you want to invoke a tedious and unrealistic interpretation of the law, then yes, at every point, it’s possible people will have to halt what they are doing, write up consent forms and move on to the next step. The spirit of the law is that where reasonable adults are concerned, they can negotiate quickly and effectively for consent, as reasonable adults have already done for a very long time. It’s just that now, unreasonable adults have it written in stone that pushing themselves on someone, even if that person does not fight back or say no, still constitutes a crime. Victims of sexual crimes are often paralyzed by fear, impairment (yes, getting drunk) or even their own guilt because they somehow believe the position they are in is their own fault. Victims of sexual crimes often become confused after the fact. They commonly think “If I didn’t fight back, then I guess I must have wanted it” because often, that is what society and law enforcement make them believe. Yes, the guilty can still manage to find a way around this law, but that is true of every law on the books.
      Finally, being raped by someone you know is far more common than rape by strangers. That one way that rape can be so insidious, that someone you thought you “knew” has betrayed you. Friends, coaches, teachers, FAMILY and even spouses can cross that line. Wife rape may be as high as 10% of the married population in the US.
      You really need to do more research on the subject of sexual assault.

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      1. Jonathan, read my post again, and this time think. Whether or not it is a good idea to go to a party where booze is flowing would depend on the party. I avoided company parties where the booze was flowing and spouses were not welcome because I KNEW WHAT WAS GOING TO HAPPEN. Even though I do not drink, I knew there would be plenty of “mistakes” that night and I avoided it because it was ALL WRONG. What you are perpetrating Jonathan is the fallacy that promotes addiction to alcohol, that YOU CAN ONLY HAVE FUN IF THERE IS BOOZE.

        MY overall point is that you have to protect yourself, and attending a party flowing with booze with people you don’t know is stupid. Of course it is not your fault if you are attacked, but there is very little consolation after the attack that “he had no right to do it”. The best thing to do is avoid these venues entirely. I do so as a man, because, there is nothing so boorish as a bunch of inebriated young people.

        Your numbers about marital rape are essentially pulled OUT OF THE AIR. Stranger rape is also a big question. How much of it is RAPE and how much of it is REGRET. Yes, a woman inebriated is not in a position to give consent, but then, how can you then hold the man 100% responsible if he is equally drunk? The whole paradigm is fraught with potential issues that a good attorney will use to advantage. Let’s take Lena Dunham’s rape into consideration. Here she lied about the rape. The so-called, familiar rape will have a trial of “he said, she said” issue. And since the prosecution will have to prove guilt beyond a REASONABLE DOUBT, “he said, and she said” will be fraught with reasonable doubt. Unless, as I suspect, feminists want to change the rules of evidence concerning rape, and essentially force the rapist to “PROVE HE WAS INNOCENT”. I don’t think any of us want that can of worms, because once we go down that road, it will ultimately apply to everything. Happily, we are a nation of laws with a presumption of innocence.

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  8. Affirmative Consent … (either verbally or nonverbally)

    Is that really hard to understand??

    If you cannot detect the different between a welcomed kiss and an unwelcomed kiss while it is happening, you should not kiss – OR – you are someone who has to ask “Do you like this?” “Shall I go on?” “Are you ready for this?”

    There was no “explicit consent” requirement.
    It is the rare porn video that does not demonstrate “affirmative consent.”

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  9. My point is that just like sex itself, affirmative consent can be playful, sensual, serious, respectful, erotic, and creative.

    And my guess is that if you’re struggling to make consent any of those things, you’ll probably also have a tough time making sex any of those things.

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