The XX Factor

Do Not Fear California’s New Affirmative Consent Law

California Gov. Jerry Brown just signed California’s new affirmative consent law.  

Photo by Max Whittaker/Getty Images

On a classic episode of the sitcom It’s Always Sunny in Philadelphia, Dennis, the most sociopathic character of the bunch, explained to another character why he wanted to buy a boat. “The whole purpose of buying a boat in the first place is to get the ladies nice and tipsy topside so we can take them to a nice, comfortable place below deck and, you know, they can’t refuse. Because of the implication.”

When another character protests that this sounds an awful lot like rape, Dennis defends himself: “Because if the girl said no, then obviously the answer is no. But the thing is, she’s not going to say no. She would never say no. Because of the implication.” He clarifies, “The implication that things might go wrong for her if she refuses to sleep with me.” 

The “she didn’t say no!” defense lost a little of its power over the weekend. Sunday, the progressive governor of California, Jerry Brown, knocked another one off the feminist wish list, signing into law a bill that requires universities in the state to adopt an “affirmative consent” standard to be used when investigating sexual assault complaints on campus. This means that during an investigation of an alleged sexual assault, university disciplinary committees will have to ask if the sexual encounter met a standard where both parties were consenting, with consent defined as “an affirmative, conscious and voluntary agreement to engage in sexual activity.” Notice that the words “verbal” or “stone sober” are not included in that definition. The drafters understand, as most of us do when we’re actually having sex, that sometimes sexual consent is nonverbal and that there’s a difference between drunk, consensual sex and someone pushing himself on a woman who is too drunk to resist. 

Misrepresentations of the bill have caused some people to worry that it goes too far. The LA Times editorial board released an op-ed back when the bill was first introduced expressing those concerns. After admitting that it should be common sense that both (or all, I must remind the Times editorial board) parties in a sexual encounter “should be confident that their partner consents as well,” the editorial board went on to hand-wring about the supposed dangers:

But is there a role for the government in mandating affirmative consent? It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms. Colleges, to their credit, are struggling to clarify and strengthen their policies on sexual misconduct, and are seeking to provide better support for victims of sexual assault in the face of growing concern about the issue. But must they become so prescriptive as to try to set rules about exactly how sex should proceed? There are serious questions about whether such a policy is either reasonable or enforceable.

Yes, it would be unreasonable and unenforceable to monitor every sexual encounter and demand students follow a step-by-step process for how to have sex. Luckily, that is not what the bill was proposing and is not what the governor signed. The affirmative consent law only helps clarify how university disciplinary boards should proceed in cases where one person is saying she was raped while the other is swearing it was just a hookup. 

The law has no bearing on the vast majority of sexual encounters. It only applies when a student files a sexual assault complaint. And all it does is help the disciplinary board craft its line of questioning to get to the important facts. Now, instead of starting the investigation by asking if the victim said no—and how she said no and whether her no was good enough to get her out of unwanted sex—the investigation focuses on the actions of the accused. Example questions could include, “Did she want to have sex with you?” or “Did she want to do everything you two did?” 

“Most of the cases that I learned about, though each horrid in its own way, involves a female student, perhaps engaged in a hook-up session, being forced into an act against her will,” wrote Vanessa Grigoriadis in a recent New York magazine cover story about college sexual assault activism. This is not an accident. Sexual predators know that seemingly murky “date rape” situations invite second-guessing of the victim, both from herself and from others, about whether or not she worked hard enough at setting boundaries.

The affirmative consent law sets the bar for sex at roughly the same level that we have for going to someone’s house: Don’t do it if you’re not invited, and don’t use the fact that someone invited you into his or her living room as an excuse to abscond with a stereo. 

Setting the bar for consent as “actually wants sex” will help prevent problems like what happened in this Seattle high school case in 2012. A 15-year-old accused another student of raping her, and while he didn’t admit to rape, he did openly admit to having sex with an unwilling person:

Teachers, Garfield’s principal, district officials, a rape advocate, the National Parks Service and the FBI, which has jurisdiction over the national park, were all alerted, and details tumbled out quickly: The alleged perpetrator was a classmate, who admitted that he had had anal sex with her. He acknowledged to law enforcement that she told him to stop several times but said he persuaded her to “roll with it.” …

When asked if Emily said anything during the incident, the boy disclosed to the school district investigator, “I did not pay attention to her that much.”

The school determined there was “insufficient evidence” that she was a “victim of harassment.” But under an affirmative consent standard, it’s much harder to argue that a woman was consenting because she was bullied until she gave in or that it doesn’t count as rape because he was too busy getting off to notice she was saying no. The new California law will make it harder for men who enjoy having sex with the unwilling to argue that her nonconsent was “ambiguous” in order to escape punishment. For the rest of us who are busy having consensual sex, there’s no reason to worry about this shift in standards at all.