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The Most Important Campus Sexual Assault Law That No One's Ever Heard Of

One year in, California's Yes Means Yes law still draws blank stares and quizzical looks.

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Rob, a 20-year-old fraternity member wandering the UC Berkeley campus this past semester, is not aware of SB 967. The nation’s first Yes Means Yes law, passed by the California legislature last September, it requires Rob—and every other student at a public or private college that receives government aid—to gain a partner’s consent before engaging in sexual activity. No longer is the absence of a “no” sufficient grounds for collegiate sexual relations to proceed. Now there must be “affirmative, conscious, and voluntary agreement” to engage in sexual activity.

But while Rob is ignorant of what is now known as the affirmative consent law, he is certainly knowledgeable about the concept of affirmative consent—and the fast-spreading movement to halt campus sexual assaults. In large part, that’s because he perused pictures circulated by Re-define Mine, UC Berkeley’s student-led effort to raise awareness about rape culture. The photos of semiclad men and women, emblazoned with slogans like “Never asking for it!” and “Consent isn’t sexy—it’s the law,” piqued Rob’s attention in ways that his university’s official outreach efforts had not. He noticed that some of the female subjects “were with their shirts off,” he says, adding without irony, “It was really cool, really profound.”

Rob—who, like many of the interview subjects in this story, prefers not to be identified—epitomizes many of the students one encounters when surveying the Cal campus these days. Ever since California passed Yes Means Yes, critics have warned that it will chill college students’ sex lives, turning yesterday’s drunken hookup into today’s felony. But one year in, few of the students contacted for this article admit to even a passing acquaintance with the law.

“I don’t know what that is,” affirms a male underclassman idling in UC Berkeley’s Sproul Plaza between classes. A group of six young women gathered for lunch on a nearby lawn offer similar responses—except for one who nods in recognition and says, “No one knows about it.”

Though students profess troubling levels of ignorance about the new law, putting them at considerable risk of unwittingly breaking it, they can hardly avoid some awareness of the underlying issues. UC Berkeley is being sued by three female former undergraduates for allegedly mishandling their sexual assault complaints. Last fall, the university recorded nine rape allegations in the month of October alone, five of which allegedly occurred on the same night at a single fraternity. The topic of sexual assault on college campuses has blown up nationwide, most visibly at Columbia University, where a student carried the mattress on which she was allegedly raped to classes in protest against the administration’s handling of her case. In July, New York became the second state to adopt a Yes Means Yes law.

Given all the attention, why aren’t more Berkeley students cognizant of the state-mandated changes to hookup protocol? Janet Gilmore, a UC Berkeley spokeswoman, says that university orientation sessions have educated students about affirmative consent for years. In fact, both Cal and the UC system as a whole adopted affirmative consent standards before Yes Means Yes became state law. In August 2014, Cal instituted workshops for new students on sexual assault, sexual harassment, mental health, and alcohol abuse; more than 5,300 of the approximately 7,000 freshmen and transfer students reportedly attended. Those lessons, however, seem to have slipped the mind of virtually every student I interview.

Undergraduates attribute what knowledge they do have of affirmative consent not to top-down dissemination through official university channels, but to “really cool, really profound” grassroots student organizing. “There’s this huge movement of Yes Means Yes,” says Khanh, a 20-year-old junior, tying the phrase to student activism rather than state law or university policy. “Sexual violence is a big thing on campus, a hot topic.”

Despite their quizzical responses to questions about the law, students like Nicholas, a 20-year-old sophomore, support the general concept of affirmative consent. “Even just a simple ‘Do you want to?’ or ‘Are you ready?’—stuff like that, being very transparent—is very key,” he says. “I’m like, ‘Do you want to go through with this?’” (He feels compelled to add that this hasn’t prevented him from enjoying a robust sex life).


The move—both legally and culturally—toward
the affirmative consent standard has caused some students to rethink past experiences. Amy, a 20-year-old junior, says that it was only this year that she came to view an inebriated encounter as a sexual assault. “I was really not lucid at all,” she says, her voice tightening. “I don’t really remember what happened. It happened during a time when I didn’t know what the definition of sexual assault was, so I didn’t really realize until this year that I was probably raped.”

The evolving definition of sexual assault has inspired some of the same anxieties in students that have been expressed about the law itself. Says Amy, “I know a lot of my guy friends are like, ‘What if we’re both inebriated, and then the next day she goes and says it’s rape? I thought it was a mutual thing.’”

Michael O’Connor, a law professor at the University of La Verne and an unabashed critic of the law, argues that there is indeed reason for concern. “Drunken hookups are now extremely precarious,” he says, because “the law provides that someone accused of sexual assault cannot raise as a defense that the other party affirmatively provided consent—if the accused party reasonably should have known that the other party was too intoxicated to consent. It really should be termed ‘Yes May Mean Yes,’” because an intoxicated yes can hardly be considered affirmative consent.

O’Connor argues that the law’s supporters are “trying to change the circumstance under which college students...can have intimate relationships.” He points out that nonconsensual sex was already a crime in California. “The law does nothing to change that,” he says. “Instead, it focuses on how students and personnel have to communicate consent and under what circumstances sexual intimacy following those communications will be deemed permissible.”

Although this ambiguity has left more than a few students fearful of the consequences of a drunken fling, Sarah, a 20-year-old sorority member, believes that such fear might not be a bad thing. “It forces people to be a bit more careful,” she says. “I still think we have a long way to go.”


Originally published in the September issue of
San Francisco

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