What is Affirmative Consent?

So Jerry Brown just signed SB-967, the Student Safety: Sexual Assault Bill, into law in California. There's been a good deal of reporting recently on widespread problems at colleges and universities in how they deal with rape and assault and I'm the first to acknowledge those problems. There's a

culture of acceptance at best or tacit approval at worst of sexual assault on campuses, and in many cases faculty and staff would rather ignore it than address it. So legislation to reform the system and protect victims is certainly needed and welcome.

And that brings us to the current bill, which basically requires every school to enact and Affirmative Consent sexual assault policy to receive any state of federal funds. The affirmative consent standard is usually defined as requiring the each person engaging in sexual activity to obtain active affirmative, voluntary agreement to sexual activity. Which sounds great. Of course affirmative consent should be required. But when it comes to criminal legal matters the details are critical and that's where California's new law is problematic. The relevant text reads:

(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “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.

This law requires "affirmative, conscious, and voluntary agreement" but never defines what constitutes such agreement to satisfy the legal requirement. It tells you what does NOT constitute consent, including lack of protest, silence or an ongoing dating relationship. OK. But what DOES constitute affirmative consent? A yes, a nod, a smile? And further complicating things is the requirement for ongoing consent throughout the sexual activity. Again, what exactly is required? Does an initial verbal consent mean that less definitive physical cues are sufficient going forward? Or must both parties pause every 10 minutes to obtain updated verbal consent? 

This may seem like petty carping because everyone KNOW what consent means. But in legal matters of such import, "just knowing" isn't enough. This law creates questions and confusion with arbitrary and undefined requirements to avoid being guilty of rape. Amanda Marcotte defends this ambiguity saying "The law has no bearing on the vast majority of sexual encounters. It only applies when a student files a sexual assault complaint". To which Jonathan Chait responds "So the law will not come into play because nobody will actually try to enforce it. Instead, it will technically deem a large proportion of sexual encounters to be rape, but prosecutors will only enforce it if there is an accusation. And since most, and possibly nearly all, sexual encounters will legally be rape, then accusation will almost automatically result in conviction... What percentage of the last decade worth of Hollywood sex scenes, if acted out between college students in California, would technically constitute rape? A majority? Ninety percent? Deprogramming and reorienting societal ideas about sex is an evolutionary process. California isn't merely attempting to set out to nudge the culture in this direction. It is reclassifying all sex that falls outside those still-novel ideas as rape. A law premised on this sort of sweeping, wholesale change is likely to fail." I have to say I find Chait's argument more compelling.

So again, reform and new laws to deal with sexual assault are both needed and welcome.  An Affirmative Consent law of some form is a great idea.  But those laws must be clear, well defined and specific in their requirements.  I don't think California's new law reaches those bars.