Consent, California Style

by Elizabeth Nolan Brown

5822104430_411775c541_bLawmakers can get it wrong in the most staid of circumstances, but throw a little sexual activity into the mix and things just get really bizarre. And leading the pack on bizarro sexual paternalism lately has been California. This summer, the state legislature has been trying to force condoms on porn performers and redefine rape for college students. The latter effort coincides with a nationwide push to address sexual assault at schools, one focal point of which has been consent.

In some ways this is great – feminists have long been stressing the need to teach young men not to rape over teaching young women how to avoid rape. A central tenet of this is cutting through the bullshit that leads to genuine confusion over consent (myths like women say no in bed because they want to be talked into it or that pursuing a love interest despite her repeated rejections is romantic and not annoying/scary). And the fact that lawmakers and mainstream media outlets are even discussing consent is a testament to how well this push has worked. I’m not sure I ever heard the term consent (in a sexual context) in college; now it’s a buzzword.

Of course, consent has always played a central role in our legal definitions of sexual assault and rape – though not necessarily as central a role as you might think. In many states, criminal code defines rape as sexual penetration using force or the threat of force, according to George Washington University law professor John F. Banzhaf III. If force isn’t an element, “the act would not be rape even if the woman had not consented, or, indeed, even if she had in fact said ‘no.’ Moreover, even if her judgment were significantly impaired by alcohol, the action would not constitute rape if she were able to move or speak at the time.”

California is not one of these states – it already employs a pretty broad and comprehensive definition of rape. The proposed consent law currently under debate in the Assembly (it passed the Senate in May) seeks to impose affirmative consent as a requirement – not for all sexual activity, but for sex between college students at universities that accept state funding.

An affirmative consent standard, also supported by the Department of Education, says that any sexual act counts as rape or assault unless the other person affirmatively consents – that is, specifically gives a yes, not merely refrains from saying no. Under the California consent bill, consent requires “an affirmative, unambiguous and conscious decision” by each party; this consent must be “ongoing” and “can be revoked at any time.”

Unless we presume that rape only occurs between men and women, and only with men as the perpetrator, this standard is on its face a little bit nuts.

In a world where any party – male or female, gay or straight – is capable of committing rape, hookups would have to involve a constant stream of back-and-forth consent (“do you consent to me doing this?” “yes – do you consent to me doing this?”). In reality, affirmative consent proponents tend to talk about it as matter of men getting women’s permission to proceed.

But my main objection to California’s consent bill is that it creates one definition of consent and rape for some college students and one for everyone else in the state. This seems a strange proposition, and one likely to create confusion for the folks of California as well as the courts. It merely muddies up the waters of consent.

“California needs to provide our students with education, resources, consistent policies and justice so that the system is not stacked against survivors,” said state Sen. Kevin de Leon (D-Los Angeles) in promoting the bill. But a consistent system wouldn’t set one standard of sexual consent for college students and one for everyone else.

If college rape is real rape – and, uh, obviously it is – we should stick to one legal definition of consent for all adults and then try those accused of violating it in the same judicial system. No means no, and rape means the same thing regardless of whether you’re enrolled in school – and comes with the same legal penalties.

(The Dish’s extensive coverage of sexual assault on college campuses is here. The above photo is by Chris Brown.)