California Now Has A Law That Defines Consensual Sex

California’s bill is hardly surprising, though it is a long time coming.


The California Senate has just passed a bill that would define, in the context of college campuses, precisely what “consensual sex” means. It’s meant to provide a way for colleges to effectively and accurately handle cases of sexual assault.

The bill would require colleges to adopt a standard student conduct policy that would define consensual sex as an “affirmative, conscious, and voluntary agreement.” In other words, consenting to sexual intercourse would require the participants to explicitly indicate their intentions – a “yes” rather than the absence of a “no.”

If voted into law, colleges across the state would be required to use the new definition in all correspondence, printed materials, and educational orientations. Any school that receives state funding would be beholden to the new law.

The bill is an answer to recent concerns that the rate of sexual assaults on college campuses has reached “crisis levels.” In fact, previous hotspots for unwanted sexual activity, like Missoula, Montana, are now considered just average.

California’s bill is hardly surprising, though it is a long time coming. Universities have been under pressure from a number of sources – the federal government and student activism groups, to name two – to take stronger action against the widespread problem of sexual assault.

Efforts to – for lack of a better term – standardize consent in a sexual context aren’t exactly a new idea. In fact, there are about 800 campuses across the country that have adopted similar policies. What is unprecedented, though, is the fact that this marks the first occasion where a state government has made a concerted effort to collaborate on guidelines that had heretofore been in the hands of the country’s educational institutions and their respective student handbooks.

Perhaps unsurprisingly, efforts to standardize sexual consent have not been without their share of critics. For example, Harvard’s recently rewritten sexual assault policies declined to provide black-and-white definitions of affirmative consent, which drew some fire from women’s advocacy groups. Mia Karvonides, Harvard’s Title IX officer, defended the decision by pointing out that there simply is no “standard definition of affirmative consent.”

A particularly contentious variation of affirmative consent policies came out of Ohio’s Antioch University in 1991. The standards required verbal consent between partners for “each level” of sexual activity. They went so far as to insist that moaning doesn’t count. Clearly, educational institutions have been struggling for quite some time to accurately and reasonably define affirmative consent in a way that has something to do with the way real human beings interact with each other.

Regrettably, sexual assault has become an increasingly serious (or at least increasingly well-publicized) problem all across the country. It was reported earlier this year that reports of sexual assault in the military have risen dramatically over the last few years, making personal safety a bigger priority than ever for active duty servicemen and women. Coupled with the rise in sexual assaults on college campuses, one might feel that labeling the situation a “crisis” isn’t unwarranted after all.

Which means that there are some larger and rather unpleasant implications here; are there not?

I’ll be the first to say that human behavior isn’t something that needs to be defined, legislated, or otherwise enforced – unless a law has actually been broken. But to have one of the nation’s most populous states providing very explicit directions for what does and doesn’t constitute consent is, I believe, a troublesome precedent, however well-intentioned the legislation may be.

Sexual intercourse is an expression of mutual trust, and shouldn’t be entered into lightly by either party. So is affirmative consent necessary? Of course – I just don’t like the idea of either partner being able to make somebody’s life difficult after the fact because they forgot to say “You may continue” at regular intervals during the encounter.

Any discussion about sexual politics is doomed to become a minefield, so I’ll close with what spokespeople from UCLA and Chapman University hope to get out of the new legislation: publicity.

Both schools agree that some action was called for, and that the new legislation is a gesture that will make schools’ expectations “more clear” and will help women feel “empowered to speak up when they are in bad situations.”

Hard to find fault with that reasoning. All we have to do now is wait to see, in the long term, whether the legislation succeeds in its mandate or whether it causes more problems than it solves.

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