Universities and colleges around the country have been under tremendous pressure to reduce incidences of sexual assault and rape on their campuses. California lawmakers recently introduced a bill that would use very strong and affirmative language to define consent between two college students, before any sexual interaction takes place.
The California Senate recently passed the bill, which is the first in the country to actually define what sexual activity in colleges across the state, consists of. Now, the bill will make its way to the governor’s desk, and if he signs it, the bill will become law.
The bill, if it becomes law, would require that colleges enact policies that clearly require persons engaging in sexual activity to obtain consent before the activity begins. The consent would be affirmative, conscious and voluntary, and according to the bill, the consent would not simply be the absence of opposition. In other words, merely the fact that one person in the sexual encounter failed to say “no,” would not be taken as consent. Consent will only be considered taken in the presence of a “yes.”
For years now, sexual assault victims advocacy groups have called for colleges to change the definition of consent, and educate college students about the evolving definition of consent. According to them, it’s important for colleges to invest in educating students about the importance of attaining consent in response to the widespread incidents of sexual assault.
However, as criminal defense attorneys, we are concerned about the unreasonable standards that colleges would be held to, if the bill becomes law. It’s hard to define what constitutes “affirmative” consent, and it might be unreasonable to expect persons engaged in sexual activity, to require and obtain verbal consent for each new level of sexual activity.