Sex offenses that occur on college campuses have garnered much media attention in the past several years. Some studies claim that as many as 20 - 25% of female students (as well as some percentage of male ones) may be sexually assaulted while on campus.
Students who allege sexual assault have often gone on to have poor experiences coming forward to authority figures at their schools. A Columbia student, Emma Sulkowicz, protested her university’s inadequate response to a rape allegation by routinely carrying a mattress with her while on campus. Some students instead drop out of school due to the social and psychological toll of being the target of a crime (and in some cases the added stress of being victimized by a trusted peer). Others never report the crime, fearing the stigma that can surround this type of case.
At times, the only clear evidence of sexual assault is found in two different versions of what happened, resulting in a version of the classic “he (or she) said” versus “she (or he)” said dilemma. This is especially true when there are few or no witnesses to the events or where a medical examination of the victim does not clearly show any trauma. Confusion over consent to sex is also compounded when students are intoxicated or their judgement is otherwise impaired. What may be one person’s “misunderstanding” with regard to consent can become another person’s source of great suffering.
What is Affirmative Consent?
One potential solution to some of these problems has come in the form of rules which ask students to more clearly consent to sex with one another. The logic goes that if there are steps taken to make a brighter line between wanted and unwanted sexual contact, fewer assaults will occur. Both California and New York now have laws that make affirmative consent mandatory at all universities and colleges in their states.
Affirmative consent requires not that a potential partner not say “no” to sex, but that they actively say “yes.” For example, in the California bill:
- Affirmative consent means affirmative, conscious, and voluntary agreement to engage in sexual activity
- Each person must ensure that he or she has the affirmative consent of the other or others to engage in sexual activity
- Lack of protest or resistance, or silence, does not mean consent
- Affirmative consent must be ongoing throughout a sexual encounter and can be revoked at any time
- The existence of a dating relationship or past sexual relations between persons involved should never by itself be assumed to be an indicator of consent
- An accused person may not rely on the argument that they believed they had consent because they were intoxicated or behaving recklessly
- In addition, an accused person may not rely on the argument that they did not take reasonable steps to ascertain whether the alleged victim affirmatively consented
What are the Benefits and Drawbacks of these Laws?
These laws have the potential to help some students navigate the complicated worlds of dating and sex without becoming entangled in either side of a sexual assault case.
However, critics say that these laws still pit one person’s word against another’s but now give alleged victims too much power to accuse other students of sexual assault. They argue that any time a person can’t prove affirmative consent, they will now be presumed guilty. Those who oppose these laws also note that the existing law already prohibits conduct like having a sexual encounter with a person who is unconscious or says no to sex, and that the laws that are already in place are enough to protect “real” victims. Finally, some argue that this law is the epitome of government (and in this case school) intrusion into private life, regulating an area of activity that is truly personal.
On the other hand, studies have shown that sexual assault accusations are no more likely to be falsified than accusations of any other crime. The new law is designed to welcome victims to come forward and to share their experiences without having their allegations too quickly dismissed. Ideally, this law also does a favor for the would-be alleged rapist, making a clear roadmap that he or she can follow to safeguard against any future claim that an encounter was not consensual.
In an era where school is an expensive investment necessary for many people’s future careers, schools must be proactive in making their campuses safe and free from sexual assault. These laws are a positive step in ensuring that the educational experience does not involve rape.
Authored by Alexis Watts, LegalMatch Legal Writer