Home In the News The Legal Definition of Consensual Sex is Likely to Change in California: What It Means

The Legal Definition of Consensual Sex is Likely to Change in California: What It Means

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By Stephanie M. Hunziker, PhD, criminal justice faculty at American Military University

Last week, the California State Senate passed SB-967, a bill that would affect all state-funded college campuses to redefine the meaning of consensual sex. For decades now, state lawmakers around the country have relied heavily on the “no means no” campaign against sexual assault and rape. This California bill would introduce a sweeping change for college campuses, students, and their college communities. Given the unanimous vote, Governor Jerry Brown will likely sign the bill into law before the end of September.

Affirmative Consent: What Does the Bill Mean?
If the bill is signed into law, colleges and universities in California will have to adopt a new affirmative consent standard across their communities. The law would require “affirmative, conscious, and voluntary agreement to engage in sexual activity.” There is some discretion here for universities and colleges to develop their own wordage for their policies, however, policies will need to reflect the requirement regarding affirmative consent.

Consent Must be Ongoing
The bill includes language that consent must also be “ongoing” and that lack of protest and lack of resistance is not indicative of consent. This is really what sets the new idea of consent apart from the “no means no” definition.

Now parties engaging in sexual activity will have to seek some level of consent in the form of a “yes” in order to legally engage in sex and sexual activity. That consent will also need to be ongoing, meaning that those engaging in sex will need to continue to gain affirmative consent as they progress through each step of sexual activity. You might be thinking to yourself: “What’s next? A signed written contract confirming consent?”

Why the Change?
According to the Senate, the primary reason for the change has to do with the seeming inability of colleges and universities to reduce the number of sexual assaults on campus. Some research studies put the prevalence of sexual assault among college students at 1 in 5 women (Krebs et.al., 2007).

The White House appointed a task force in January of this year that was assigned to protect students from sexual assault (Not Alone, White House Task Force, 2014). During their review of research, the task force noted that the vast majority of these sexual assaults occur early in a student’s college career and that they often occur between a victim and offender who knew each other previously. Most troubling is the finding that many women are incapacitated at the time of the assault; meaning they are drugged, intoxicated, or incapacitated in some other way (e.g., passed out) (Not Alone, White House Task Force, 2014).

What to Watch For
If the Governor of California signs the bill into law we should be looking for further discussion about how affirmative consent can be communicated, legally, between the parties engaged in sexual activity. Further discussion is expected regarding how we should remedy the call for consent to be “ongoing.” Critics of the bill will likely address its vague language that does not address whether consent has to be purely verbal or if another form of communication might suffice. In addition, the real issue here is about the prevalence of sexual assault and rape on campus.

Will such a law make a difference in the occurrence of these assaults?

Stephanie HunzikerAbout the Author: Dr. Stephanie M. Hunziker has been working in the criminal justice field for the past 15 years and has been teaching courses in criminal justice and law for more than a decade. She teaches courses in policing, courts, the administration of justice, juvenile justice, the future of criminal justice, research methods, and criminal justice policy.

References:

Krebs, C.P., Lindquist, C.H., Warner, T.D., Fisher, B.S., & Martin, S.L. (2007). The Campus Sexual Assault (CSA) Study. Washington, DC: National Institute of Justice, U.S. Department of Justice.

Not Alone, White House Task Force to Protect Students from Sexual Assault (April 2014). Office of Vice President and the US Council on Women and Girls.

Comments

Comment(3)

  1. While I understand the general concept that is going into this law, I’m very confused by what the implementation will be. A student that has a consensual sexual encounter, but does not receive periodic and specific “Affirmative Consent” can be charged with a sexual assault, but a non-student can’t be? Set aside the prosecutorial discretion at charging, can a law be constitutional that criminalizes actions based on your educational status?

  2. Thanks for your reply Wayne. That’s a great question and I had the same thought when I was researching the bill. What if a student is having consensual sex with a non student? I’m not sure what the repercussions might be there? As I understand these policies will only be for the college campuses when they are addressing complaints and reports from students about an assault. The state is basically trying to force these institutions to do ‘something’ where they seem to have failed in the past.

  3. One gut-check on a specialized law such as SB-967 is to ask why not expand the law to include everyone and thus make it a criminal law rather than legislating procedural policy for education. From this perspective, I can see even more problems with SB-967.

    SB-967 tasks the academic institutions to write and enforce the policy including investigative interviews with the accused without providing the accused representation or a mechanism to challenge the institution’s decision. The institutions are not impartial judges since their state funding may hang in the balance if punishments are not increased.

    Even if the schools were impartial, this is a highly emotional and lurid environment in which the evidence of even the agreed to consensual part of the sexual activity is prejudicial if not culpably damning and SB-967 places the institutions in this role without any training.

    Bad enough but then SB-967 calls for a preponderance of evidence – a lesser level akin to a civil process – while mandating confidentiality of the accuser and allowing the accuser to withdraw consent up to and including the end of the sexual act thus allowing remorse to be construed as lack of consent.

    The accused must thus prove a negative under a highly subjective level of evidence to a biased judge all without being able to know who the accuser is much less face them as civil procedure discovery would allow and without representation or redress.

    To quote Martin Rees, “Absence of evidence is not evidence of absence.” Here, lack of provable consent does not imply sexual assault and SB-967 simply attempts to bypass the courts, remove safeguards and ramrod disciplinary action by a biased university system. It takes a problem and overcorrects.

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