Commentary Violence

Is Affirmative Consent the Answer to Sexual Assault on College Campuses?

Martha Kempner

California lawmakers are debating a bill requiring affirmative consent—a verbal or written yes—for sexual activity on state-run college campuses. Is this an unenforceable piece of legislation, or might it usher in the culture shift we need?

Read more of our articles on consent and sexual assault on U.S. college campuses here.

A bill making its way through the California Assembly is attempting to address the problem of rape on college campuses by mandating affirmative consent, or a verbal or written yes, before engaging in sexual activity.

SB 967, which has already passed the state senate, says that all sexual behavior on state-run college campuses requires “an affirmative unambiguous and conscious decision by each participant to engage in mutually agreed upon sexual activity. … Lack of protest or resistance does not mean consent, nor does silence mean consent.”

Students who want to have sex on campus will need to reach a mutual agreement. The bill comes as four of California’s state universities made the list of 55 colleges under investigation by the U.S. Department of Education for mishandling sexual assault cases.

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A few weeks ago, I wrote about Brown University’s botched attempt to deal with one case of sexual assault and mentioned how it gave me déjà vu because similar events had happened on that same campus when I was a college student two decades ago. This California bill also is giving me déjà vu, as I immediately remembered the highly criticized policy developed by Antioch University in 1991 (also during my college days) that required affirmative consent seemingly at every touch. This became the butt of many jokes and the focus of a 1993 Saturday Night Live sketch starring actress Shannen Doherty, who was at the height of her Beverly Hills 90210 fame, and the late SNL cast member Chris Farley. Though I found the skit (which I will explain in more detail later) offensive, Antioch’s strict rule still struck me as a bit ridiculous at the time. I did not believe that it could really work to end the crisis of college sexual assault. And I was pretty sure that it would ruin consensual sexual spontaneity.

I still worry about those things. However, it’s been more than 20 years, and we clearly haven’t solved the problem of sexual assault on campus, so it seems like a good time to revisit whether legislating affirmative consent might make a difference.

Affirmative consent essentially changes the current standard of “no means no” to one of “yes, and only yes, means yes.” In its most basic form, it means that the person who is initiating sexual behavior must receive a verbal yes from the other person before continuing, and that this consent must be ongoing through the sexual encounter. In other words, consent for kissing does not count as consent for oral sex.

In my interview with Toby Simon about her work to prevent sexual assault on Brown’s campus in the 1990s, she pointed out that within a few years the “no means no” message had gotten through. In Brown’s skit-based prevention program, if the young woman on stage said “no” out loud, there was no longer any debate amongst the student audiences watching the performance—she had been raped. But if she was silent, multiple questions about her motives, behaviors, and culpability came up. So, if “no means no” sunk in on that campus more 20 years ago and sexual assault is still prevalent there, it seems clear that we need a new standard.

Though it is easy to define the standard of affirmative consent, operationalizing it is far more complicated. The process is clunky at best. Consider these finer points in Antioch’s 1991 policy:

  • Consent is required each and every time there is sexual activity.
  • All parties must have a clear and accurate understanding of the sexual activity.
  • The person(s) who initiate(s) the sexual activity is responsible for asking for consent.
  • The person(s) who are asked are responsible for verbally responding.
  • Each new level of sexual activity requires consent.
  • Use of agreed upon forms of communication such as gestures or safe words is acceptable, but must be discussed and verbally agreed to by all parties before sexual activity occurs.
  • Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dance floor is not consent for further sexual activity).

If this policy is followed to the letter, it would mean that even if you were fooling around with a partner of several years with whom you’d done pretty much everything, you would need to discuss and agree upon what you were going to do tonight—either in advance or along the way.

This is where comedians had a field day, and where the SNL crew came up with their skit. It opened up on set of a Jeopardy-like game show, called “Is It Date Rape?” hosted by the “Dean of Intergender Relations.” The contestants were Ariel Helpern-Strauss, a “junior and a major in Victimization Studies,” played by Dogherty, and “Mark Strobel, a nose back and Sigma Alpha Epsilon brother,” played by Chris Farley. The running joke is pretty obvious: She thinks everything is date rape and he thinks it’s not. In a skit within the skit, the “date rape players” parody what a sexual experience at Antioch would now look like with lines like “May I touch your left breast now?” and “Yes, you have my permission to touch my breast.” The whole thing depicts affirmative consent as pretty ridiculous. You can read the full transcript here if you want to know the details.

Again, I found the sketch offensive to women and especially to survivors of date rape, because it was one more example of people belittling their experience and portraying them as oversensitive. Further, it suggests that affirmative consent will turn what could have been a fun, intimate experience into something about as sexy as getting your taxes done.

In writing about California’s proposed law for the site Vocativ, Elizabeth Kulze—who also notes the similarity to the Antioch rule and mentions the SNL sketch—says that affirmative consent rules miss the mark because date rape is not about misunderstanding.

Multiple studies have shown that the sexual assault crimes are almost never a consequence of miscommunication. Rapists are usually aware that their coercive and aggressive behavior is both wrong and unwelcome, but they go ahead and pursue the prize anyway.

She’s right that the men involved in many sexual assault cases have no intention of stopping no matter what they hear. 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.

Moreover, as Amanda Marcotte pointed out in a piece for Slate back in February, affirmative consent might help us do away with the myth that sexual assault on campus is often just a case of women regretting their weekend of drunken sex:

Looking for a woman who said “yes” (or any variation of it, which can be expressed in a variety of ways, both verbal and nonverbal) instead of focusing on whether she said no in exactly the right words will help put the role alcohol plays into focus. It will clear up some of the murky gray areas, such as cases where a woman is too drunk to be articulate in her refusals but not so drunk that she passes out. It will also offer a degree of protection for scared men, because a somewhat intoxicated woman who explicitly asks for sex will have a hard time convincing the courts she hasn’t “demonstrated intent” to bone. It’s an easy way to get more guilty men convicted while offering protection for innocent men.

What I think convinced me the most about the potential benefits of affirmative consent, however, is the idea—pointed out on—that such a rule creates a community standard.

The 1991 Antioch policy called sex without consent an “offense against the entire campus community.” State Sen. Kevin de León (D-Los Angeles), who authored the California bill, said in a February press conference, “The measure will change the equation so the system is not stacked against the survivors. There’s nothing that’s vague, there’s nothing that’s ambiguous to this equation right here.” More recently, he added, “I think this is really critical that we create a culture that’s respectful of women, that we create protocols that are transparent.”

Having this new standard, which lets everyone know that sex without active consent is not OK, is an interesting start to changing culture. It rules out sex with someone who is too drunk to consent. It rules outs blaming the victim for not saying “no” or for following a guy back to his room. (“Well, what did she expect?” becomes “She expected to be asked for her consent.”) And as much as possible, it interjects into the situation some pre-sex conversations, which we sex educators have been trying to get couples to embrace for years.

I recognize that the roots of rape culture in our society go far deeper than what happens between individual couples in the bedroom. On a societal level, we have a lot of work to do on how we view sexuality and gender before we make a dent in our rape problem. I also recognize that these laws may be impossible to enforce and may not, in the end, make it any easier to punish rapists; there will no doubt still be he said-she said battles over who said “yes” and when.

Yet I find myself hopeful at the thought of this law passing in California. It’s a baby step—but one that’s trying to incite a culture shift away from putting the onus on women to prove they didn’t want it. And culture shifts usually do happen in baby steps.

Correction: A version of this article incorrectly noted that “students who want to have sex on campus will need to reach a mutual agreement either verbally or on paper” (emphasis added). However, the latest version of the bill text omits that reference, saying only that there must be “an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.” We regret the error.

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.

News Politics

Tim Kaine Clarifies Position on Federal Funding for Abortion, Is ‘for the Hyde Amendment’

Ally Boguhn

The Democratic Party voiced its support for rolling back the restriction on federal funding for abortion care in its platform, which was voted through this week.

Sen. Tim Kaine (D-VA), Hillary Clinton’s running mate, clarified during an interview with CNN on Friday that he still supports the Hyde Amendment’s ban on federal funding for abortion care.

During Kaine’s appearance on New Day, host Alisyn Camerota asked the Democrat’s vice presidential nominee whether he was “for or against” the ban on funding for abortion. Kaine replied that he had “been for the Hyde Amendment,” adding “I haven’t changed my position on that.”

Robby Mook, Clinton’s campaign manager, told CNN on Sunday that Kaine had “said that he will stand with Secretary Clinton to defend a woman’s right to choose, to repeal the Hyde amendment.” Another Clinton spokesperson later clarified to the network that Kaine’s commitment had been “made privately.”

The Democratic Party voiced its support for rolling back the restriction on federal funding for abortion care in its platform, which was voted through this week.

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“We will continue to oppose—and seek to overturn—federal and state laws and policies that impede a woman’s access to abortion, including by repealing the Hyde Amendment,” reads the platform.

Kaine this month told the Weekly Standard that he was not aware that the party had put language outlining support for repealing Hyde into the platform, noting that he had “traditionally been a supporter of the Hyde amendment.”

Clinton has repeatedly said that she supports Hyde’s repeal, calling the abortion care restriction “hard to justify.”

Abortion rights advocates say that Hyde presents a major obstacle to abortion access in the United States.

“The Hyde amendment is a violent piece of legislation that keeps anyone on Medicaid from accessing healthcare and denies them full control over their lives,” Yamani Hernandez, executive director of the National Network of Abortion Funds, said in a statement. “Whether or not folks believe in the broken U.S. political system, we are all impacted by the policies that it produces. … Abortion access issues go well beyond insurance and the ability to pay, but removing the Hyde Amendment will take us light years closer to where we need to be.”