California Takes on Campus Rape — And So Does Ms.

10155869346_6891d190aeIf a bill proposed in the California legislature passes and is signed into law, it won’t be enough for a campus sexual assault perpetrator to defend himself by claiming, “She didn’t say no!” Rather, he’ll have to prove that she said “Yes!”

Co-authored by state Sen. Kevin de León, state Sen. Hannah-Beth Jackson (D-Santa Barbara) and Assemblywoman Bonnie Lowenthal (D-Long Beach), the bill–SB 967–would establish “affirmative consent” as the standard for determining if sexual activity is wanted or forced. An accused perpetrator cannot use self-intoxication or recklessness as a defense, and the person assaulted cannot have give consent if asleep, unconscious, incapacitated due to drugs or alcohol or unable to communicate because of a physical or mental condition.

Among other provisions in the bill, it would also require colleges and universities to implement prevention strategies, including women’s empowerment, awareness campaigns, primary prevention, bystander intervention and risk reduction.

“It’s heartening to see that California will be a national leader on this issue,” says Caroline Heldman, associate professor of politics at Occidental College in Los Angeles (an alma mater of Pres. Barack Obama). “The affirmative consent requirement could shift campus rape culture. Instead of placing the onus on one party to say ‘no,’ sex will be approached as something that both parties must enthusiastically agree to.”

LawHeldman, along with her Oxy colleague Danielle Dirks,  is actively involved in a nationwide movement by students and faculty to prevent campus rape and ensure better support from campus administrators. They also have written the cover story of the new issue of Ms. magazine, which offers a comprehensive overview of the problem and the growing activism around it.

As the cover headline reminds us, 1 in 5 college women will be sexually assaulted during their campus years. But fewer than half report the crime, many because they don’t believe they’ll receive justice from institutional authorities. Adds Heldman,

The survivor-centered approach in this bill is vital to actually addressing the epidemic of campus assault/rape. The new anti-rape movement on campus is causing a sea change in public awareness, White House priorities and now policy in the state of California. College stonewalling that we’ve witnessed for decades on this issue will no longer be possible with so many powerful government entities focused on enacting meaningful change.

And here’s what California legislators Jackson, Lowenthal and another primary sponsor, Democratic state Sen. Kevin de León, have to say about it:

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Top photo from Flickr user SchuminWeb under license from Creative Commons 2.0




  1. How does one prove that both parties said yes? Do you need a signed permission slip from both parties that is notarized by a third party bystander now? That is what its looking like. This thing does happen and I feel bad that it does and that people fear they don’t get help when it happens to them. They should be getting help and this kind of behavior needs to stop. I fear for people who get in to a relationship with someone, has sex and break up and that one of them might be angry enough to cry that they got raped after.

    • This is the kind of statement that leads to cyclical rhetoric that doesn’t serve ANYONE. You only need to watch the clip above or look into the national Stats on sexual assault to see how this IS A RELEVANT and ONGOING issue, and not JUST for women. I think what you may want to ask your self – as a male – wouldn’t you want justice for yourself if YOU were raped? Because rape happens to BOTH males and females. Would you even report it? Can you imagine, out side the above scenario, how this new law will affect victim blaming culture? How this will help the other 95% of victims in finding courage enough to come forward and officially report BECAUSE “she didn’t say no” has been good enough for the justice system, until now?

      • Yes, it does happen to males and females. It has happened to me and I HAVE reported it. But it does turn into a ‘He said/she said’ fight and its something that is hard to PROVE one way or another. ‘She didn’t say no’ isn’t good enough that is true. You missed the point of the post. If you got together with someone and slept with them. Its your own choice to do so. You both agreed to it and no one can tell you not to. But a few days later you are arrested for rape. How do you prove they said yes? That is my issue, you can say ‘they didn’t say no’ but you can’t prove they said ‘yes’ either.

      • Also, its supposed to be ‘innocent tell proven guilty’, not ‘guilty tell proven innocent’. So if you have to prove they said yes, you are already thought of as guilty.

        I found some stats that say 46% are undecided. Can’t be proved either way. So now on the have to prove the person they had sex with did say yes. Almost all cases will have guilty parties even if they didn’t do it.

        • Here you go with all your rules and laws that came out of millennia of patriarchy. Defending rape culture with your typical male excuses. It’s time for women to FIGHT BACK and END RAPE CULTURE!

    • Let me translate your comment: “Bitches be lying, amirite?”

      Go victim-blame SOMEWHERE ELSE.

      • Not victim-blaming anyone. It is a problem and people need to come out when it happens to them. And yes, people lie all the time. MEN and WOMEN lie to get what they want. My point is that its hard to prove one way or another that a victim is raped. Which is horrible and there needs to be a better way of doing so. But its going to be just as hard to prove they said yes.

        And let me translate my comment. “When two people tell you something and one of them is lying, how do you find out which one is?”

      • Max Wahrhaftig says:

        I don’t see how not being a fan of a guilty until proven innocent policy is “victim-blaming.” People do lie to the police, and if they could use the law like a club against enemies and strangers to bully, punish, or blackmail, some would.

    • Yes, a notarized permissions slip would be a good place to start, Mitchell, plus verification after sexual congress has begun that the original affirmative consent statement was still valid.

      It’s called rape prevention, get used to it.

  2. I’m all for consent, but the burden of proff is on the prosecution for a good reason. This sounds like gulity until proven innocent. I am not defending rapists, there is a huge problem with the way the issue is handeled.
    I think the solution sould be that we treat rape like we do robbery. If I steal your stuff and say, “It’s not theft, xe told me to take it and give it to charity.” and you say that didn’t happpen, you will most likely be beleived. We don’t give a rape victim the same benefit of the doubt that we give any other victim.
    In my hypothetical robbery, they have to prove that I did it for legal consequenses to happen. It is not my responsibility to prove that I did not. There has to be a better means of justice.

  3. I’m all for clear communication, I’m just a little worried it’s asking too much of most people, both women and men. This will not be a problem in most cases, but in those few in which it is, how would a person prove ‘affirmative consent’? I mean, changing the discourse around consent is a good idea, but when laws are supposed to do that, it does become necessary to define the concepts at hand… so, what would constitute ‘affirmative consent’? Would people still be allowed to have a drink before deciding to have sex? How would this translates into practice?

  4. Seriously – look at the language of the proposed bill. Being for enthusiastic consent in general is fine, but as in most cases this kind of thing results in ambigous and bad legal terms.

    “(1) “Affirmative consent” is a freely and affirmatively communicated willingness to participate in particular sexual activity or behavior, expressed either by words or clear, unambiguous actions. It is the responsibility of the person who wants to engage in the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity.”

    What does that even mean with respect to:

    (2) (B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

    Reasonable? So what is reasonable? How do you prove your innocence in that respect? And that is, in fact, what is required of a defendant in cases where there’s dispute. It is certainly possible to lift the presumption of innocence when the consequences aren’t as draconian as in the normal tort system, but still. How does a defendant prove her innonence in case one of the misunderstandings that even the bill itself writes about occurs?

    I mean, it’s fine to write a victim centered law, but ignoring the possibility that victims may not actually be victims, thereby turning the accused into an actual victim, and not giving any guidelines about how to defend oneself against accusations is a bit reminiscent of the kind of wishy-washy legal doctrines introduces after 9/11.

    Also, assuming such a law will get the limelight it is designed to get, even if it won’t pass, won’t not having any clear guidelines for people to deal with such additional requirements do more harm to the general idea of better consent because it doesn’t do anything to help people better communicate which is what would really be needed.

  5. This is not a criminal law right?!?! That would be horrifying to say that a defendant/accused has the burden of innocence. An affront to society, Fifth Amendment protections, and the foundation of our society.

    I do not condone rape, but I think this law/statute/whatever it is goes very far, too far. Is “affirmative consent” proven by a simple “she said yes.” That’s it. You bring in an accused and say “you have been accused of rape by this person.” Is this satisfied by a simple, statement of the accused that “He/She said yes.” IF that is enough, this law is meaningless. If this not enough, this law is dangerous and smacks in the face of constitutional protections.

    I hope this isn’t a criminal law or even a campus measure where an accused can face serious consequences on the weighing of the “affirmative consent” by untrained administrators. If it is, if a person must prove their innocence, that no law was broken, i think we should not proclaim that to all those persons who have been or ever will be accused of a crime, the burden is now on you to prove your innocence!

  6. HI – Right along with this topic happens to be a video I just finished. It focuses on the ridiculous “advice” given to women at colleges on how to prevent rape. Take a look at the Jezebel article and the video.

  7. I’m all for improving the rate of prosecution of rape and for doing something – anything really – about campus rape, but has CA done something that needed done decades ago even if merely clarified to establish campuses couldn’t do what mine did? Campuses used to say (and local PD and justice systems would back them up on this) that you had to go through campus PD and get Campus PD to bounce it out in order to have it even make it into the justice system. Considering that campuses have a vested interest in showing that violent crimes don’t happen on campus or happen in lower numbers, suffice to say they found reasons not to turn over cases starting with not even taking reports. Hell, when my rapist turned stalker they told my PROFESSORS things like “to quit overreacting” and “quit acting like a little girl” (these sorts of insults to someone who’d left Stalin’s Siberia on foot) and wouldn’t even take reports for them – Campus PD even defended him and his behavior against THEIR complaints and attempts at filing reports against what he was then doing.

    And who’s to say that stuff like violence, intoxication and various forms of coercion won’t be used to get a partner to “say yes”? I can’t see how this clarifies much of anything, really. Though it IS smarter sexual behavior. I also thought much of it was law already like that you couldn’t consent under many of those specified conditions. Anyone know?

  8. Men will need to get consent forms signed before they have sex. Then they need to send in a Putative Fatherhood Registry form naming the female with whom he had sex (so as to be able to maintain a legal right to his child if one is born) and verify her government issued ID to insure that she is who she says she is so he does not get sued for defamation if the female he claims to have had sex with, is not the real name of the woman he had sex with. While looking at the ID, he also needs to verify her age as well, to avoid statutory rape. Then, he must administer a breathalyzer test to insure that she has not had anything to drink and have her sign an affidavit indicating that she has not taken any drugs and that she is of sound mind and does not have any emotional or psychological issues that might impair her decision making process. Then, he must video record the session (with audio) as the law states that if she claims that she said “stop” (even 3/4 of the way into an orgasm) he must stop immediately or he is guilty of rape.

    If I were a radical-feminist trying to make intimacy with a female too risky for males, I would be glowing with pride over all of these things already implemented — and keep pushing for more — like switching the burden of proof from the prosecution to a Napoleonic proving of innocence on the accused, exactly as proposed by this legislation.

    • Women AND Men will need to get consent forms. Folks, especially women, are not thinking this through. I feel that this is coming from a feminist narrative which says there are two kinds of guys: guy who rape and guys who will rape. In any case, if a guy does not give an affirmative “yes,” a woman can be accused of rape as well…right? If that’s not the case, then it’s a discriminatory law…

  9. I don’t mean to oversimplify this subject, but it is interesting that whenever we talk about holding men accountable for sexual violence, or anything else they do as a group, the conversation begins to focus on how tough it will be on men to be held accountable.
    I also do not think that fabricating a rape story and going to court with it, is as easy as we are often led to believe. Are there stats on how many times women have actually lied about being raped vs. actual rapes?

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