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California’s Affirmative Consent Law: Beyond The Bullshit

September 30, 2014

A federal judge once said to me, when I was just a young’un, that this is how you read a statute:  “from left to right; stop at punctuation.”  You don’t know what this thing says unless you read the text.  TL;DR from the headlines does not an analysis make.  So here is the pertinent text, the text of section (a), which is the part people are talking about:

(a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:
(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. 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.
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(A) The complainant was asleep or unconscious.
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
(C) The complainant was unable to communicate due to a mental or physical condition.
First, the plain language tells us that this statute is not a criminal law, or an obligation that the State of California imposes on any person directly.  It is, rather, a change to what California requires of colleges to be eligible for state financial aid.  So it doesn’t apply to any college that already forgoes aid for any reason, for example.  It has no impact of people who are not in college and not employed by a college, except in the sense that it may change the cultural conversation.  If you’re in high school, or not in school and working, or not in school and not working, or in the service, or in any other walk of life except attending college in California, this has no legal effect on you.
Second, all it requires is adoption of a policy that the school is required by federal law to have, and that that policy contain certain elements unique to this statute.
Subsection (a)(1)
One of the unique elements, the Affirmative Consent standard, is set forth here, and it isn’t what some people seem to be assuming.  The common rhetorical device is that affirmative consent requires some particular form of communication — notarized contract, filled out in triplicate, raised seal, etc.  Far be it from  me to criticize anyone whose kink is to have a bunch of suit-wearing functionaries watch their sexual encounters.  De gustibus non disputandum est, which I think is Latin for “your kink is not my kink but your kink is okay.”  However, the idea that that’s what the statute requires is just bullshit.  It’s not in there.
Here’s the heart of it: ” “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. 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.”  (Emphasis supplied.)  It doesn’t say what form it has to take, or how one has to ascertain it.  It doesn’t say anything about filling out a form, using an app, signing a waiver.  It doesn’t even say you have to say any particular word.  It doesn’t even require the word “Yes”!  It just says that the absence of “no” isn’t necessarily yes, and it’s your responsibility, if you’re a student in a college in California, to make sure you have a yes.  You can do that any way you like; it’s up to you how to see if you  have a yes.
There are lots of ways to ask for a yes.  If you lean in to kiss someone and they lean in to kiss you back, that’s yes.  If you ask someone if they want your cock and they say, “I want your cock,” that’s yes, and if they put their mouth on it, that’s yes, too.  If you’re fucking someone and holding them down and you’re both sweating and maybe bruised and you lean in and your hand is on their throat and you say, “can you still say no?” and they say, “yes,” that’s yes.  We’re not kids here, right?  We’ve all been there, and we know that people say yes, mean yes, shout yes and do yes in sex all the time.  Those of us who don’t want to force anyone to do anything they are not into, don’t want or need sexual encounters where people are not doing yes as hard as they can.
The rest of (a)(1) is pretty straightforward — it simply lists myths that won’t fly.  Consent to sex with someone one time isn’t consent to sex with that person every time.  Shouldn’t be controversial.  The absence of no isn’t yes.  Since people who are passed out can’t say no or yes, this should be obvious, and  is impossible to intelligently argue against.  I know CeeLo Green said otherwise, but that’s because CeeLo is a very bad person (and now, a convicted felon). Good vocalist, bad person, sorry to break it to you. Consent can be revoked at any time.  Again, impossible to intelligently argue with.  People are free at any time to decide the sexual encounter is not working for them, put on their c lothes and go get a slice of pizza.  This is not up for debate.
Subsection (a)(2)
Another element in section (a) is the standard in the disciplinary process in (a)(2).  It’s not a defense to say you believed  someone consented:
(1) because you were too drunk or too reckless to know whether they were consenting or not.  Good rule, right?  If I’m so fucked up that I may rape someone, that’s kind of like being so fucked up that I shouldn’t drive home because I might crash.  It was an adjustment for a lot of people when we began actually enforcing drunk driving laws in this country!  People said, “but how am I supposed to get home from the bar!”  And we all decided that not having drunks kill and maim people was important enough to make them take responsibility for how they get their drink on, and we did, and the republic did not fall.
(2) because you didn’t bother to find out if you had a yes.  This is the teeth that makes (a)(1) work.  If you know you have a yes, you’re good to go.  If you don’t know you have a yes, it’s on you to find out.  If you don’t, and this is important, if you acted reasonably to find out, you’re still okay.  Reasonably under the circumstances is a hard standard to argue against.  The only ways to argue against it are either (a) I want to act unreasonably and it should be okay, or (b) what I think is reasonable is not what the people enforcing this think is reasonable.
The nightmare scenario that rape apologists trot out is the one that Katie Roiphe made up (because she lives her life to piss on everything her mother stands for), the “morning after regret.”  I think it is impossible to find a case where someone was convicted of rape because one of their consenting partners later claimed nonconsent — in all the terrible history of black men being falsely accused of rape, almost always there was no actual sexual contact at all, and the rape was simply a socially convenient fabrication from whole cloth.  See the Central Park Jogger case, where the teens convicted and imprisoned had no contact at all with the victim — who was hit over the head and raped by an entirely different person, who was a serial rapist and died in prison.   In instances of political hoaxes like Brawley, likewise the events never transpired, and in the Duke Lacrosse case one of the accused was demonstrably not on the premises.  Amanda Marcotte has repeatedly thrown down the gauntlet (see comments, she’s said this before) for someone to identify an instance of false conviction arising from an actual sexual encounter between the accuser and the convicted defendant.  Nobody seems to have one.
This law protects against that scenario, fanciful as it might be.  If you act reasonably under to circumstances to see if you have a yes, you’re okay.
The Power And The Danger Of “Reasonable Steps”
That phrase, “reasonable steps, in the circumstances known … at the time” is, not incidentally, the weakness of this bill.  Law doesn’t interpret or execute itself, and this will  be interpreted by conduct counsels and deans in colleges, and “reasonable” will be what they think it means.  I’m not worried that someone who says  “hey, are you still into this” and gets “yeah” will be held to have acted unreasonably.  Sure, the perpetual whinge machine of MRA outrage will declare that “reasonable” will mean mind reading or seeing the future or having a notarized contract or some such nonsense.  But that’s like Christian extremists who complain that they are being discriminated against because they can’t bully gay kids in school — they have a persecution complex which has no relationship to objective reality.  Given colleges’ infamous disinclination to hold rapists accountable or adjudicate them liable, there is no reason to suspect that the interpretation of “reasonable” with be anything other than a mainstream-friendly view of “reasonable.”
I am worried that some asshole’s approach to consent will be, “hey, she was into fucking me, and then I took the condom off and stuck it in her ass before she knew what I was doing, and I didn’t know she wasn’t okay with that,” and that will be held to be reasonable, because people who should know better make excuses for people they like.  See generally Julian Assange and his defenders.  “Reasonable” inherently imports norms that may not work for people in their own lives.  If someone is trans or genderqueer and says, for example, “don’t touch my front hole,” I think that’s totally reasonable.  But someone who has a cis and heteronormative and penetrocentric framework for sex may decide that “reasonable” is the same as what they think “normal” is.  These are macro problems with how law operates; I offer no easy solution.
But it’s not just people whose gender or sexuality fall outside the mainstream who could find that the concept of “reasonable” fails them.  If a school were to decide that, “I asked if she wanted to come back to my room and she said yes” is reasonable inquiry and constituted a basis to assume consent to anything that happened thereafter, that would be a very bad standard.  Someone who wanted to exonerate every rapist who fit a certain socially comfortable paradigm probably could, just by applying the term “reasonable steps” to some action the rapist took or claimed to have taken.
That’s also the weakness of the ridiculous app that turned up in the news recently.  It makes no provision for withdrawal of consent (how could it?) and it makes little or no provision that I can see for sex to be something other than, “we do it in the way it looks in the movies.” So it’s useless for its intended purpose, and whatever its creator’s intent,  its actual function — I’ll go farther than Marcotte here —  is to create a defense that rapists can use later, after their targets realized that what was going to be done to them wasn’t what they were good with.
Subsection (a)(3)
Subsection (a)(3) imposes a “preponderance” standard, which is already the standard for civil liability in almost all areas, and the standard colleges have to use under the current Department of Education guidance federally, so that doesn’t change anything.
Subsection (a)(4)
Subsection (a)(4) says that there are three circumstances where, if you know this thing is true, you know the other person can’t consent: (a) unconscious; (b) too drunk or high to understand the “fact, nature or extent” of sexual activity; and (c) unable to communicate.  (a) and (c) don’t merit any discussion.  Unconscious people can’t consent, and if people are unable to communicate, you don’t know if they consent.  (b) is only slightly more elastic.  It imposes a standard for how drunk is too drunk to fuck.  Too drunk to know the fact of sexual activity is obviously too drunk to consent.  Too drunk to know the nature or extent of sexual activity requires some actual interpretation, as “nature” and “extent” don’t define themselves, but if someone is so messed up that they don’t know for example which hole a cock is in, they shouldn’t be having sex, and I think that’s the most obvious interpretation of what that means.
This Is Not A Revolution In Practice (But I Can See It From Here)
So that’s what it says.  It’s not a revolution in practice.  There are no heads in tumbrels and nobody is being carted to a reeducation camp.  From the howling, you might have surmised that this bill requires all Californians to get the late Andrea Dworkin’s permission to have sex, gently, while lying side by side, and only half way in.  That’s bullshit.  Under this standard, California’s college students are free to get their sex on any way they see fit, and communicate about consent any way that works for them.  It just clarifies that they can’t assume it, they have a responsibility to find a way to communicate about it.  That’s radical in theory, but pretty pedestrian in practice.
This is an evolution in concept.  It’s a very non-radical bill, imposing in a very careful and mainstream-friendly way what is a gradual and evolutionary paradigm shift.  But the evolution in paradigm is more important than the operation of the policies under this bill (in at most a few hundred conduct counsel proceedings) ever will be.  Just the cultural conversation about the bill has made Yes Means Yes, the idea of affirmative consent and sex as process, part of the mainstream national conversation.  The best defense of the old, Commodity Model, women as gatekeepers, paradigm was not to discuss it at all — but just to assume it.  It doesn’t hold up well to scrutiny.  It’s being dragged into the sunlight now, and in sunlight it withers because, quoting Brandeis, “sunlight is … the best of disinfectants.”
That’s why I don’t mind the people arguing against this bill.  By arguing, they are keeping the conversation going, and by doing that, they are losing.  If they were smart, which they are not, they’d ignore it and let the media die down, and push quietly for interpretations of the standard that don’t change anything.  But they’re not.  Like Todd Akin, they want to spew their extremism, their poorly informed and ideologically driven beliefs, their persecution complex and feverswamp paranoia.  So they’ll keep arguing, and if they keep arguing, the keep losing.
 Looking West into the future from here with the right kind of eyes I can see the arc bend.
16 Comments leave one →
  1. September 30, 2014 2:17 pm

    this is excellent

  2. September 30, 2014 3:01 pm

    Cultural changes will take much longer. It will be a long time before it has well and truly sunk in that those various coercive tactics are never OK, because currently the culture is one of victim blaming and shaming.

  3. September 30, 2014 4:34 pm

    Brilliant, as always, Thomas. Thank you for this. I will reblog and continue to quote you liberally.

    I did the Steampunk World’s Fair this past May, my last appearance as O. M. Grey, and for a brief moment, I thought I was going to meet you. Jeff had hoped to make that happen, but you are an understandably busy man. Just as well, as I would’ve sounded far from intelligent or even coherent. Your words have helped me heal in the past few years, perhaps even saved my life, so I would’ve been rather star-struck.

    Much love and respect. xo

  4. September 30, 2014 7:41 pm

    Thomas, I just want to thank you again for your brilliant work on this blog. I have cited you numerous times, and will share this with the media task force of the sexual violence advocacy group I’m in. It’s just SO awesome to have a piece like this to send to people who make the bullshit arguments you address. You have really helped to (quietly) shape this movement, and I and all the other advocates out there, thank you from the bottom of our (worn out, but huge) hearts. xo

  5. October 1, 2014 12:44 pm

    Do you have cites which lend credence to affirmative consent meaning what you means? Obviously it doesn’t require notarized paperwork, but as a non-lawyer, that word seems mighty ambiguous to me. It seems to at least demand that consent be expressed as opposed to merely exist.

    The part about sexual contact with an unconscious person is problematic because it ignores the possibility that consent for that act may have been obtained. Some people do exchange consent for sex when they sleep. This statute appears to ignore that possibility. Similarly, the statute appears to prohibit parties from switching to a no-means-no framework if they so desire. (Say as part of BDSM play)

    I’m not sure you’re right about the preponderance standard. The DoE guidance is non-binding. This statute is binding on a number of schools which may or may not have been following the DoE guidance. Maybe it’s irrelevant in practice.

    Finally, I think the challenge to find a false conviction where sexual contact occurs is a bit of a red herring. How do you prove consent? I doubt I could prove any but a tiny minority of my sexual encounters have been consensual to someone who was not there.

  6. Oswald Carter permalink
    October 3, 2014 7:22 pm

    I guess the writer never heard of the case of Brian Banks, Ohio high school football player who had consensual oral sex, then the girl claimed rape.Years later news reporter interviewed “the victim” and she admitted she lied to get out of trouble and for the lawsuit money. It was on MSNBC.

    • October 7, 2014 12:06 pm

      Where are you getting that Banks and Gibson had consensual oral sex? Everything I know about the case is that he said they did no more than make out, and that everything else was fabricated. So it’s not clear that counts as what Marcotte was looking for — they were in the same place at the same time, and they kissed, but they didn’t have any kind of penetrative sex, then or ever. That’s making up the whole encounter, not having consensual sex and lying about consent later.

  7. October 9, 2014 8:57 pm

    The 2-8% number is of accusers who admit to lying and not of cases dis-proven in court. If the number was that low feminist would not have an issue with low conviction rates, but they do.The new California consent law makes this worst. It replaces a he said/she said…if she said no, with a he said/she said….was she capable and did she say yes beforehand and throughout. The law will not reduce or prevent rape for the same reason the death penalty doesn’t reduce murder, nobody thinks or cares about the law when in the act. The law only makes getting convictions easier.

    But I’ll ask the important question about the law. Under the law, how do you or any other individual who had consensual sex prove it other than create another he said / she said?

    If your answer is none just don’t rape and/or hope to never be accused, then that is not equality under the law.

    If we are to teach, what we teach must work. If what we teach doesn’t prevent or challenge false accusations then it’s useless.

    Laws must make sense and are workable and fair in the real world.

  8. October 9, 2014 9:04 pm

    This is a difficult thing consent. Case in point look at Ultraviolet “Consent Porn” video. In it the female actor violates CA new consent law. She goes in and kisses the male without consent then asks afterward. How does a anti-rape feminist group get this wrong………. because consent is harder than people make it out be. Here’s the video
    Yes kissing is covered under the CA law.

  9. Liberal Dan permalink
    February 20, 2015 10:25 am

    I have discussed this on my blog as well:

    Yes means Yes is the standard that all people should use in all of their sexual activities. I want that to be perfectly clear.
    If my blog is tl;dr ill give a short list of my criticisms of the CA law.

    A) Use of the word “both” implies that sex is only between two people. It should have used “all parties”.

    B) All people should be using yes means yes, not just college students.

    C) My main problem is that government is abdicating its responsibility to protect rape victims and go after rapists by pushing this on colleges who want money from the state. Government then turns a criminal matter into a civil matter, making it easier to punish someone after being accused of a crime, which to me violate their rights as an accused. Our nation makes it hard to punish people for alleged crimes for a reason, and a very good one.

    To me, government is saying “it is too hard for us to be supportive of rape victims, let someone else handle it”.


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