In a landmark piece of legislation, the California Senate yesterday passed an “affirmative consent” bill for colleges throughout the state. The first of its kind, SB 967 explicitly requires schools to adopt a standard of affirmative consent, defined in the bill as:
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.
The bill goes on to describe in detail what does and does not count — protecting, for example, people who are raped while incapacitated due to the influence of drugs, alcohol, or medication. If signed by Governor Jerry Brown, the bill will require all public colleges and other institutions receiving state funding for student aid to implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence and stalking.
This image represents both affirmative consent and how I feel about this bill. Via Shutterstock.
Unfortunately, many news outlets have ‘balanced’ coverage of this important piece of anti-rape legislation by giving concerned citizens and rape apologists a platform to propagate misinformation.
The Washington Post included the following quote:
“I feel like their hearts are in the right place, but the implementation is a little too excessive,” Henry Mu, a 24-year-old biology major at California State Long Beach told the Press-Telegram. “Are there guidelines? Are we supposed to check every five minutes?”
From Inside Higher Ed:
How does a person prove they receive consent “shy of having it videotaped,” said Joe Cohn, the legislative policy director at the Foundation for Individual Rights in Education.
And in an AP article run in the Syracuse Post Standard:
Gordon Finley, an adviser to the National Coalition for Men, wrote an editorial asking Brown not to sign the bill. He argued that “this campus rape crusade bill” presumes the guilt of the accused. “This is nice for the accusers — both false accusers as well as true accusers — but what about the due process rights of the accused,” Finley wrote.
These statements spread confusion about what affirmative consent actually is (“yes means yes!” Really not that hard!) and, more dangerously, have little to no relation to the actual world that we live in.
To imply that affirmative consent policies turn well-meaning gentlemen into unknowing rapists is to reject the real world in favor of fantasy. Because we do not live in a world where people fabricate stories about sexual assault and report their bumbling but well-meaning sex partners willy nilly — statistically, false rape reports are extremelyrare. Rather, we live in in a world where rape prevention is a marketing opportunity directed at potential victims. Where young women are driven out of school due to harassment after reporting sexual assault. Where young men livetweet gang rape. Where protesters come out in droves to side with rapists. Where college universities deem sexual assault prevention programs “not cost-effective.” Where thousands of rape kits across the country sit untested because catching rapists is, apparently, not a top priority.
I could go on.
In short: we live in the middle of rape culture. This manifests in numerous awful ways, but most relevantly to this discussion, rape culture dictates that along with proving that they were raped, survivors must also prove that they fought “hard enough” to stop it. Not saying “no” or not physically fighting someone off, is understood to mean “yes.” And that is a huge problem.
By not accepting silence as consent, California’s affirmative consent bill nudges colleges away from rape culture and provides protection for marginalized groups. Although there are rape victims and survivors of every gender and race, women of color are especially hurt by this narrative. Frequently stereotyped as Jezebels, submissive sex-kittens and hot-headed seductresses, racialized assumptions characterize many WOC as always sexually available, by mere default of their existence. This creates an additional challenge for WOC to overcome when rape victims are burdened with the responsibility of proving clear lack of consent.
This bill won’t undo past violence or reverse the damage that has already been carried out. But it can provide marginalized groups with an extra measure of protection, as well as providing (at least some) current college students with the awareness that’s needed to bring an end to rape culture.
Before you go! Autostraddle runs on the reader support of our AF+ Members. If this article meant something to you today — if it informed you or made you smile or feel seen, will you consider joining AF and supporting the people who make this queer media site possible?
Join AF+!
FAQs
SACRAMENTO (CBS SF) - The California State Senate has passed a bill that would require written or verbal consent be established before people engage in sex on California campuses. SB 967 would establish the affirmative consent standard on all state-run college campuses in California.
What is the affirmative consent bill in California? ›
California has created a standard that requires affirmative consent — affirmative, conscious and voluntary agreement to engage in sexual activity — throughout the encounter, removing ambiguity for both parties. The law protects both partners by ensuring a mutual understanding.
What is the penal code 261 A )( 3 in California? ›
in California, Date Rape Falls Under Penal Code Section 261(a)(3)-(4), Which Deals With nonconsensual Sexual Intercourse Involving a Victim Who is Incapable of Giving Legal Consent Due to Intoxication, Unconsciousness, or Any Other Reason.
What is the statute of limitations on PC 261.5 C? ›
The statute of limitations for statutory rape in California is either 1 year or 3 years. If charges are not filed within this timeframe, the charge can be dismissed. These limitations only apply to statutory rape charges under California Penal Code 261.5. Other sex crimes have different statutes of limitations.
What is affirmative consent California Education Code? ›
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.
What is the difference between consent and affirmative consent? ›
Verbatim Language: “Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.
What is the new consent law in California? ›
In summary, the age of consent in California is 18 years old. Adults who engage in sexual activity with minors are committing statutory rape and face prosecution, even if the minor consented. The only exception is if the minor is legally married to an adult.
What is California Penal Code 664 261? ›
PC 664/261(a)(2) Attempted Rape by Force or Fear: Maximum prison sentence up to four (4) years.
Is 261 a felony or misdemeanor? ›
California Penal Code 261 PC describes the serious felony sex crime of rape as using force, fear, threats, or fraud to have non-consensual sexual intercourse with another person that is not their spouse.
What is Section 369 of the California Penal Code? ›
Per California penal code section 369i(a)(1): Any person who enters or remains upon the property of any railroad without the permission of the owner of the land, the owner's agent, or the person in lawful possession and whose entry, presence, or conduct upon the property interferes with, interrupts, or hinders, or ...
No statute of limitations for fraud of public money or any other crime that carries life in prison without the possibility of parole, life in prison, or death penalty. No statute of limitations for forcible rape. No statute of limitations for forceful or violent rape of a spouse. No statute of limitations for murder.
Is PC 261.5 a PC 290 offense? ›
California Penal Code 290 — Sex Offender Registration Act. California statutory rape is not one of the crimes requiring registration, but Penal Code 261 PC rape is. See also People v.
What is the statute 261.5 C in California? ›
(C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
What is not affirmative consent? ›
Under these changes, a person cannot consent if they submit due to: Force, harm or fear of force or harm of any type. Coercion or intimidation. Abuse of a relationship of trust and authority. False or misleading representation about payment for commercial sexual services.
What is an example of affirmative consent? ›
Periodically checking in with your partner, such as asking “Is this still okay?” Providing positive feedback when you're comfortable with an activity. Explicitly agreeing to certain activities, either by saying “yes” or another affirmative statement, like “I'm open to trying.”
What are affirmative consent rules? ›
Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.
What is the purpose of the affirmative consent law? ›
Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.
What is affirmative consent law? ›
Affirmative Consent means an informed, affirmative, conscious, voluntary, and mutual agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that s/he has the Affirmative Consent of the other participant(s) to engage in the sexual activity.
What is the yes means yes law in California? ›
With the "Yes Means Yes" law in place, affirmative consent is now defined as, "an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity." This law is to be enforced on college campuses throughout California, and clearly outlines that consent is received ...
What is the legal definition of affirmative consent? ›
Affirmative Consent must be informed, voluntary, and active, meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed-upon sexual activity.
