Campus Sexual Assault and California's New Affirmative Consent Rule

As the tide of public and political opinion increasingly recognises campus sexual assault as a pressing problem, universities are seeking new strategies.  Some are beefing up their sexual harassment procedures, or hiring new staff to support students in need; some are tackling drinking culture and fraternities. Politicians in California have taken a more radical approach, entirely redefining what sexual consent means for future generations of college students.

Over the weekend, California Governor Jerry Brown signed into law a bill that requires the state's universities to adopt an "affirmative consent" standard when investigating sexual assault complaints on campus. What does this mean? The traditional dividing line between voluntary sex and sexual assault was determined by whether “no” was indicated clearly and then disregarded.  The new law means that sexual activity is impermissible unless both parties clearly indicate “yes."  Consent can no longer be assumed just because one of the participants didn't resist or object.

This is a substantial paradigm shift in the treatment of campus sexual assault. Most importantly, it removes the pressure for the survivor to prove they said "no". Instead, attention will be shifted to the perpetrator, who will need to show that consent was given, either through verbal or non-verbal means. It provides a signal to college women that the system is not stacked against them.

Critics of the policy have argued that it puts the due process rights of accused students at risk. But, as Amanda Marcotte excellently explained in Slate, it doesn't create a guilty-until-proven-innocent assumption. All it does is provide a different lens for university administrators to use in their interviews with alleged perpetrators, instead of focusing their energies into doubting the survivor.

Critics also suggest that there’s not enough evidence to prove that this approach works. Raynard Kingston, the President of Grinnell College, which adopted an affirmative consent policy two years ago, was aware that this kind of proof was lacking, but still said: "That didn't stop us from doing the right thing." Grinnell and case studies from other schools where this approach has been tried suggest that it does work.  Indeed, Grinnell saw a sharp increase in reports of sexual assault in the two years following the new standard. The increased reporting is a leading indicator of a culture shift, a first step to an environment where violence is prevented and where rape is dealt with effectively.

The new law will not be a panacea. From our experience handling Title IX cases, we know that better policies often aren't enough to make women safer. Even when the evidence is clear, universities sometimes stubbornly refuse to investigate complaints.  Perpetrators found guilty of an offense are often allowed to stay on campus, putting more students at risk. A new analysis by Tyler Kingkade of the Huffington Post showed that fewer than one third of the students who are found responsible for incidents of sexual assault are expelled. More often they face suspension or probation.

With this new policy, we can expect three things. First, we can expect men attending California universities to be more thoughtful and respectful about how they approach boundaries, and that their example will spread. We can hope that college men around the country will adopt the same attitude as Dan Davis, a junior at Grinnell, who observes: "I will say stuff such as, ‘Do you want to go any further?’ Or little things like, ‘Is this all right with you?’ By not asking these questions, your passion and excitement is more of an entitlement, and you are just assuming that the other person is there for your pleasure."

Second, we can expect that this policy will lead to better outcomes for the survivors of sexual assault in California universities. It gives administrators new ways of approaching cases, helping them to conduct investigations in a sensitive but thorough fashion.  It takes the pressure of the burden of proof, just a little, off the shoulders of the victim. And, if the university fails to take appropriate action, it gives the student a stronger basis for legal action.

Third, we can expect this reform to accelerate the broader culture shift that is placing more responsibility on the perpetrator than the victim.  It will give colleges around the country an incentive to adopt similar policies to support and protect women on campus. And more politicians around the country, and in other countries, should see the sense in passing reforms to end the scourge of sexual violence on our campuses.