California Gov. Jerry Brown last week signed into law a bill (SB 967) making California the first state in the nation to require universities receiving state funds to use an “affirmative consent standard” for determining whether consent was given by both parties to sexual activity.
This move represents a paradigm shift from women as victims and potential victims whom we need to encourage to shout “no” a bit louder, to women as agents who have the positive right to engage or refrain from engaging in sexual relations when and with whom and under circumstances of their choosing.
Schools and colleges have been trying to convey the message that “no means no” for at least two decades, yet according to recent data, about 20 percent of women are sexually assaulted in college. In other words, “just say no” hasn’t worked any better in preventing sexual violence than it did in the utterly failed war on drugs.
Designed to address high incidences and less-than-stellar responses to rape, sexual harassment and stalking on college campuses, the law removes the onus from potential victims to unequivocally convey and prove refusal or resistance (“no”) and places the onus on potential perpetrators to ensure active consent (“yes”).
“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. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
The bill further clarifies that “it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity.”
The Problem with the Status Quo
“No means no” has been the dominant anti-rape paradigm in the United States for the past several decades. One unfortunate consequence of the “no” paradigm is the responsibility it places on women who have been assaulted to prove that they really did say “no.”
But even in the wake of the Violence Against Women Act, the majority of rapists are not arrested; only an estimated 5 percent of rapists are convicted; and an estimated 3 percent spend any time in jail.
Rape remains one of the few crimes in which the victim is scrutinized for ulterior motives, false accusations and moral deviance. Despite rape shield laws designed to protect women from verbal assaults by defense lawyers at rape trials, victims can be asked about their social and sexual history when these issues are ruled relevant to determining consent.
Victims least likely to see offenders convicted are older, poorer, deemed promiscuous or prostitutes, have a psychiatric or drug abuse history or criminal record, didn’t overtly resist or were acquainted with the offender, or had a history of previous rape or abuse.
Joy, one of the Boston area women whom I have come to know through my work with criminalized women, explained to me that when she went to court to testify against a man who violently and brutally raped her, she assumed that the evidence against the perpetrator was very strong: DNA evidence had led to his arrest originally — his DNA was found on the police computer system; police officers and crime scene officers testified; other witnesses from her apartment building testified; the nurse who examined her in the emergency room testified.
However, he was found not guilty.
“The last three questions the defense attorney asked me,” said Joy, “are: ‘Isn’t it true that you were in prison?’ ‘Isn’t it true that you are an addict?’ ‘Isn’t it true that you used to work in prostitution?’”
In other words, her “no” didn’t count.
Joy’s experience represents a broad trend: In this era of DNA testing, consent is the primary defense used in rape cases. Coming at this time, California’s affirmative consent standard is a critical step in diverting attention away from the behavior, clothes, personality, drug use, criminal record or degree of resistance by women who have been raped and placing it where it belongs — on the actions of the perpetrator.
The Need for a New Model
As the former chair of the Institutional Review Board (the body that reviews the ethics of research involving human subjects) at Suffolk University, I suggest that the State of California turn to the well-developed, refined and extensively evaluated protocols for informed consent in human subjects research as a model for interpretation and implementation of affirmative consent in sexual activity.
Protocols for protecting human subjects acknowledge the power differentials inherent in the relationship between researchers (in possession of knowledge, institutional backing, monetary resources and access to goods and services such as new medical treatments) and human subjects. The structural imbalance of power in the relationship between researcher and subject demands that researchers are pro-active and clear in facilitating the informed consent or refusal of each human subject.
Consent cannot be assumed, silence does not mean “yes,” and it is the responsibility of the researcher to present potential subjects with a real and meaningful choice regarding participation in the research, to refrain from offering inappropriate financial incentives, and to avoid any hint of threatening negative repercussions for refusal to participate.
The process of asking for and receiving informed consent includes: (1) disclosing to potential research subjects information needed to make an informed decision; (2) facilitating the understanding of what has been disclosed; and (3) positively promoting the voluntariness of the decision about whether or not to participate in the research.
The language and the technicalities (such as written proof of consent) used in human subjects’ research would need to be revised to meet the needs of ensuring consensual sexual activity, but the model makes a great deal of sense.
Like research interactions, gendered interactions are inherently unequal given the greater incomes, financial assets, political power and physical size and strength of men as a group vis-à-vis women as a group, and the far greater likelihood that women (nearly 1 in 5) than men (1 in 71) has been raped at some time in their lives.
Clearly spelling out the responsibilities of those in positions of dominance will in the long run facilitate positive interactions despite power differentials. And clearly spelling out the rights of those in subordinate positions will, I believe, contribute to more equality in all spheres of life.
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Susan Sered is a professor of sociology at Suffolk University in Boston and a senior researcher at Suffolk’s Center for Women’s Health and Human Rights. Her most recent book is “Can’t Catch a Break: Gender, Jail, Drugs and the Limits of Personal Responsibility” (University of California Press, 2014).