Will Nation Follow Lead of California’s Affirmative Consent Law?

Updated Oct 7, 2014

Now that Governor Jerry Brown’s signature on SB967 has made “affirmative consent” the law in California, colleges in that state will undergo a paradigm shift in how to prevent and investigate sexual assaults. Instead of “no means no,” consent will now require “an affirmative, conscious and voluntary agreement to engage in sexual activity.”

What’s that mean? You have to hear a yes to advance forward. Until then, it’s a no, even if nothing is expressed.

In other words, the answer is “NO,” until you hear a “Yes”—from involved parties.

All California post-secondary schools, public and private, that receive state money for student financial aid are affected. The California State University and University of California systems adopted similar consent standards this year.

However, one school that isn’t following California’s example is 3,000 miles away.

In July, Harvard came out with new guidelines covering all forms of “sexual harassment.” But instead of the more enlightened “consent” language found increasingly in more schools, Harvard used an older “unwelcome conduct” standard, taken from much older guidance on Title IX.

That’s unacceptable according to student organizers of Our Harvard Can Do Better, an undergraduate campaign against sexual violence at Harvard.

Recently, the group put out a side-by-side comparison of the consent language in the California bill and among other universities.

California State Bill SB-967: “Affirmative consent” means 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.”

Princeton’s policy: “the University considers consent as the voluntary, informed, uncoerced agreement through words and actions freely given, which a reasonable person would interpret as a willingness to participate in mutually agreed-upon sexual acts. Consensual sexual activity happens when each partner willingly and affirmatively chooses to participate.”

University of Pennsylvania’s policy: “Consent is an affirmative decision to engage in mutually agreed upon sexual activity and is given by clear words or actions.  Consent may not be inferred from silence, passivity, or lack of resistance alone.”

Yale’s policy: “Sexual activity requires consent, which is defined as positive, unambiguous, and voluntary agreement to engage in specific sexual activity throughout a sexual encounter. Consent cannot be inferred from the absence of a “no”; a clear “yes,” verbal or otherwise, is necessary.”

There are subtle differences between all of the examples. But the message is clear.

You’ve got to hear a “yes.”

So how does your school’s definition compare? Is it up to the modern standard or is it stuck in the past?

Can your school do better? 

Emil Guillermo writes on issues of race, culture and politics  for the Asian American Legal Defense and Education Fund (www.aaldef.org/blog)  Like him at www.facebook.com/emilguillermo.media ; twitter@emilamok