Sex, Drugs, & Affirmative Consent
November 16, 2014
“In the criminal justice system, sexually based offenses are considered especially heinous. In New York City, the dedicated detectives who investigate these vicious felonies are members of an elite squad known as the Special Victims Unit. These are their stories” Law and Order: Special Victims Unit (1999-2014).
In case you are too young, live under a rock, or perhaps really dislike Mariska Hargitay, these opening lines from one of the longest running criminal procedural shows also happen to be the subject of California’s most recent addition to the Higher Education Act of 1965. Around the same time college campuses across the country officially began their Fall Terms, a United States legislature actually got something signed into law. SB- 967 (colloquially known as “Yes Means Yes”) was passed in late September requiring all universities, community colleges, and graduate schools to implement new standards to their rules governing sexual assault between students. It added an affirmative consent standard to the existing educational code.
Detectives, Olivia Benson (Mariska Hargitay) and Elliot Stabler, take the victim’s statement and immediately proceed to the school where the alleged assault took place. The first questions asked are of what information the school’s investigation has turned up, and why the alleged assault was not reported to the police immediately following the allegation. Many times the school’s response is extremely defensive, and if an investigation is even taking place, the answers to both questions are usually one and the same.
Campus related sexual assault, commonly known as “date rape,” is no laughing matter. Fortunately, it seems Governor Jerry Brown, and California’s legislature, have realized the dire need to reform this area of the law. The addition of §67386 to the California Education Code outlines several requirements for California colleges and universities to establish in order to receive state funding:
In order to receive state funds for student financial assistance… [educational] institutions shall adopt a policy concerning sexual assault…dating violence, and stalking…involving a student, both on and off campus. The policy shall include all of the following: an affirmative consent standard in the determination of whether consent was given by both parties to sexual activity…it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity…A policy statement on how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality…initial response by the institution’s personnel to a report of an incident…The role of the institutional staff supervision…comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases…Procedures for confidential reporting by victims and third parties.
The California State Legislature states that intoxication, consciousness, and silence, cannot be used as a defense against a sexual assault accusation. As opposed to “no means no,” consent must be affirmative (hence the phrase, “yes means yes”).
Apply a basic hypothetical on the elements of assault and battery: Sleeping Beauty’s consent (or lack thereof) to Prince Charming’s attempt to revive the princess through the use of true love’s kiss. The issue becomes whether the princess perceived the prince’s kiss to be harmful and offensive contact, and thus felt an immediate threat of further harm by the prince when she woke up. Across college campuses the hypothetical frames the legislation in far less controversial terms. If Sleeping Beauty woke up offended or harmed by the prince’s kiss, he could not simply say, “Hey, you were asleep, and the dwarves said it was ‘all good.’ Our date last night went so well, and we said we loved each other…whoops, my bad.” Slightly altering the conversation, this defense or excuse becomes all too common in school related sexual assaults. SB-967 addresses this issue by adding the following standard: prior dating relationships, consent, or assumptions are no longer valid excuses, because consent may be revoked at any time before, during, or after sexual activity.
Even though we may not always feel safe walking around at night, the legislation is promising. SB-967 has given both students and faculties across the country the tools to begin combating this ever-present problem.