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Proposed California Sex Consent Law Goes Too Far

“No Means No’ an Example of Trying to Legislate Behavior

As colleges and universities prepare for the new academic year, this is a good time to discuss a growing problem on campuses throughout the U.S. – sexual assault on women. I have previously blogged about the problem. Now, the California legislature is debating a bill that would require college students to secure “affirmative consent” from their partners at every stage of sexual activity. If the bill is passed, colleges must use the legislature’s definition of consent in their sexual assault policies or risk losing state funding for student financial aid.

The problem with such a bill is it is difficult to enforce the law. Affirmative consent still boils down to a ‘he said, she said.’ The cost to enforce the law is significant and may not have any measurable effect on the behavior it tries to regulate. Instead, colleges should treat the issue of sexual assault on campus as a matter of education, training, and to develop a vigorous process of investigating and dealing with such matters. Don’t get me wrong. Sexual assault is a serious problem on college campuses. Colleges need to guarantee a safe environment for students, while law enforcement is best suited for handling more-serious sexual-assault cases.

In general, I believe the law is largely unenforceable and is another example of trying legislate what is and is not proper behavior. As with all ethics matters, you can’t legislate behavior. One’s behavior results from upbringing, peer influence, and the underlying values that make a person tick. Teaching about such matters through on campus programs is the best way to deal with sexual assault. Colleges can use past allegations of sexual assault as examples of when no means no.

SB-967, passed the California state senate in May and is expected to be heard in the state assembly later this month. If it becomes law, it would become the first state law to require a consent standard. The bill says consent requires "an affirmative, unambiguous and conscious decision" by each party to engage in sexual activity. Silence or lack of resistance doesn’t constitute consent, and a person who is drunk, drugged, unconscious or asleep would not be able to give consent, according to the standard. Consent must be ongoing, and “can be revoked at any time,” the bill says.

The legislation comes in the wake of a report released by the White House Task Force to Protect Students from Sexual Assault and multiple civil rights suits, alleging that colleges and universities are failing to properly investigate, report and punish sexual assaults. In May, the U.S. Department of Education released a list of 55 colleges and universities which were currently under investigation for the way they handle reports of sexual assaults. Four of the schools on that list were from California.

SB 967 provides the following guidance to determine when affirmative, conscious and voluntary agreement exists.

  • It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent.

  • Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.

  • The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

  • The accused also could not use being under the influence of drugs or alcohol or recklessness as an argument for being the complainant.

  • It also is not consent if the complainant was asleep or unconscious, was unable to communicate due to a mental or physical condition, or incapacitated due to the influence of drugs, alcohol, or medication, so the complainant could not understand the fact, nature, or extent of the sexual activity.

Critics of the bill believe that it would require students to draft up a written sex contract before going to bed or constantly proclaim “yes, yes, yes!” at every slight readjustment, thereby practically redefining most sex as rape. “Frequently these cases involve two individuals, both of whom maybe were under the influence of alcohol or drugs, and it can be very tricky to ascertain whether consent was obtained,” said Ada Meloy, general counsel of the American Council on Education, which represents college presidents.

To be sure there are students who support the bill. University of California at Berkeley student Meghan Warner, 20, said that’s a good thing. She said she was sexually assaulted during her freshman year by two men at a fraternity but did not report it, because she believed “that unless it was a stranger at night with a weapon who attacked you when you were walking home, that it wasn’t rape. It’s just a crappy thing that happened.” She now runs campus workshops to teach students what constitutes consent.

“Most students don’t know what consent is,” she said. “I’ve asked at the workshops how many people think if a girl is blacked out drunk that it’s okay to have sex with her. The amount of people who raised their hands was just startling.”

To help deal with the growing problem of violence on college campuses directed toward female students, the Avon Foundation for Women provided support to Futures Without Violence, an organization that deals with the well-being of women and girls, to launch a groundbreaking campaign to address dating violence, stalking, and sexual assault on college campuses. Futures Without Violence recently released, Beyond Title IX: Guidelines for Prevention and Responding to Gender Based Violence in Higher Education, outlining how best to create and promote a campus norm of interpersonal respect and non-violent relationships. These guidelines are available to colleges and universities to adapt and implement on their campuses. The guidelines should be used for on campus workshops and incorporated into the curriculum whenever possible.

My experiences tell me that the behavior of students is more likely to be influenced through workshops and using speakers who have been involved in the activity being examined. I use guest speakers all the time when teaching financial fraud to my students. I know from past experience it works better than asking students to follow a set of rules they may not identify with. I also try to give my students guidance in all matters pertaining to ethics and behavior by passing along some advice that can be applied both in one’s personal as well as professional life – make good choices. The bottom line, I tell them, is ethics is all about what you do when no one is looking.

Blog posted by Steven Mintz, aka Ethics Sage, on August 26, 2014. Dr. Mintz is a professor in the Orfalea College of Business at Cal Poly, San Luis Obispo. He also blogs at:

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