Sex without consent is assault, and for a long time this message was delivered with the words “no means no.”
But considering that a report publicized by the White House found that one in five female college students will be sexually assaulted during her college years, it’s clear that the lesson is not getting through, putting pressure on colleges and universities to do more to protect sexual assault victims and punish their assailants.
Now lawmakers in California are considering a bill that would require all colleges in the state to define sexual assault as sexual activity to which the victim has not agreed, making the new standard “yes means yes.” Schools that don’t use this definition when investigating and adjudicating sexual assault allegations would risk losing state funding for financial aid.
The “yes means yes” standard is easy to misunderstand and satirize, but the idea behind it is really very simple: If the other person can’t or doesn’t say “yes,” then it’s not OK to proceed with sexual activity. With this proposal, California is advancing what should become a national conversation – resulting in, we hope, a new standard on sexual activity and consent throughout our society, not just at colleges and universities.
Campaigns to stop sexual assault on campus have for years centered on the concept that “no means no,” summed up as follows in a 2005 Vanderbilt Law Review article: “If an individual verbally rejects sexual advances, that person must be seen as withdrawing consent to sexual contact.” But this standard doesn’t account for the fact that a victim may be too intoxicated or too scared to say “no.” What’s more, “no means no” implies that the only rape reports that deserve to be taken seriously are those in which the victim emphatically rejected sexual activity – discouraging victims from coming forward with allegations of an already underreported crime.
There are some misguided ideas about the California “yes means yes” bill. It wouldn’t require students to draw up written contracts before any sexual activity, or force them to get a partner’s permission every step of the way during a sexual encounter. All a student has to do to comply with the measure is to make sure that their partner is on board with what they’re doing.
And this consent can be either verbal or nonverbal, through, for example, a nod of the head or moving closer to that person. Granted, effective dialogue takes practice – which is why it’s good that the California bill also mandates that universities educate students on what constitutes consent, allowing young people to try out and hone their communication skills.
For too long, on-campus sexual assault investigations have focused on whether the victim resisted or said “no.” While there are legitimate concerns about legislating a cultural shift, the California bill at least represents a move away from the idea that it’s up to the victim to prevent sexual misconduct and puts the burden where it really belongs.