Should You Have To Sign A Contract Of Consent Before Sex?
A new bill working its way through the California legislation will likely revolutionize the way college campuses and students consent to sexual activity. But are the proposed changes the kind of changes needed?
The bill is called SB-967, and it was introduced by California Democratic state Sens. Kevin De Leon and Hannah-Beth Jackson, as well as coauthored by Assemblywoman Bonnie Lowenthal. And according to the language, the bill seeks to amend the student safety section of the state’s Education Code, to require college students in particular to provide “affirmative consent” prior to engaging in any sexual activity, including kissing.
According to various published reports, the bill, which has already passed the state senate and is working its way through the state Assembly, would also require California colleges and universities receiving state funds for financial aid to create and implement policies and standards to not only address affirmative consent, but also for those institutions to “implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence, and stalking.”
As many supporters of the legislations have noted, this bill does away with the often murky blurred lines of consent, which results from tough to prove cases of sexual assault like date rape and when the victim is intoxicated or passed out. Now alleged offenders would have to prove that consent in the affirmative was given prior to engaging in sex, as opposed to the old way, which relied on alleged victims of sexual assault, having to prove that they said no.
However the response to the bill has been a pretty mixed bag. As Emma Woolf writes in her piece for The Daily Beast, entitled Does California’s College Rape Bill Go Too Far In Regulating Sex?, the bill has its problems, particularly how -as it is currently written – a consenting couple would have to seek permission for each sexual act, prior to it actually occurring. And by definition, that would make every single sexual act in the state of California rape in the pretext. More specifically she notes:
“But what about regular physical intimacy between regular (non-criminal) students? Are we in danger, in the rush to legislate, of ruining the moment? When I was a teenager, the stages of physical intimacy were called bases: so you might go to first base, second base, third base, or “all the way.” (I don’t remember any young men checking in between bases…)
Comedians love to satirise this kind of law: “May I touch your left breast?’ “You may touch my left breast’; “May I touch your right breast?’ etc. Comedy aside, the conviction rate for rape and other sexual crimes is scandalously low, and this bill seems unlikely to right that wrong. The tragic fact is that rape can and does happen within marriages: once again, SB 967 does nothing to address that.
But in a response to those criticisms, Martha Kemper of the reproduction rights and sexual health website, Reality Check, points out in her piece, Is Affirmative Consent the Answer to Sexual Assault on College Campuses?, that kind of thinking belittles the act of consent and the paranoia of those who are being overly sensitive. Instead, Kemper writes about the law’s potential to address rape culture as a whole:
“But communication is still important. Young men have been taught by our society that their role in relationships is to want sex badly, and women’s is to reluctantly give it to them. Many have never really been taught what is and isn’t consent—except, perhaps, “no means no.” That does not excuse any man who rapes, but it is a problem. Fostering a culture of affirmative consent among both parties could prevent at least some men from raping.”
That is an important point to note considering the US Department of Education is currently investigating 55 colleges and universities for allegedly mishandling sexual assault cases. Personally, I feel like this law is potentially some game-changing stuff here. In addition to getting folks to think in new ways about how we communicate sexually including consent. It looks like it will begin to hold education institutions more accountable. But I do worry about the implication and those pesky grey areas. Like how can expressed consent, particularly the verbal kind, be proven when the people involved are disputing the claim? And whose word will matter more? If the we currently treat sexual assault victims in the legal justice system is any indication, potential victims of sexual assault might run into some of the same institutional barriers and biases, particularly the discrediting women through slut-shaming, they had before.