The state of California last month enacted a controversial law, SB 967, called “Yes Means Yes.” The law attempts to deal with the growing problem of sexual assault on the state’s college campuses. According to a survey, one in five college women will be sexually assaulted during their time as students. Of course, sexual assault is already illegal, but the lawmakers apparently concluded that (a) often sexual assault results from a misunderstanding between the sexes regarding whether there is mutual consent to have sex and (b) this misunderstanding needs to be clarified. Which is social engineering in its purest form.
Several years ago, I blogged about social engineering and relied on the following Wikipedia description:
- An attempt to influence popular attitudes and social behaviors on a large scale. Usually the term refers to government action, but it can apply as well to private groups. Social engineering is not inherently negative, but because of its usage in the political arena, it has come to have a negative connotation. Technically, all government laws – such as prohibitions against murder, DUI, theft, and littering – are social engineering. Governments also engage routinely in social engineering through incentives and disincentives built into economic policy and tax policy. Conservatives and libertarians often claim that their opponents (the liberals) are engaged in social engineering, and that makes sense because liberals prefer a muscular government while conservatives and libertarians prefer a muscular private society. But even liberals complain of social engineering when it comes to prayer in school, abstinence-only sex education, and the English-only movement.
The social behavior the “Yes Means Yes” law is attempting to influence is that most men believe they are permitted to pursue a female sexually until she says, “no.” “No means no” fits that standard. By contrast, some females believe that a man should not initiate sex with a woman unless she gives “affirmative consent.” Yes means yes.
The key language in the new law reads as follows:
- (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.
According to an article in the NY Times, there are major concerns about potential ambiguity in the affirmative consent – “But most male students expressed some nervousness about accidentally running afoul of consent rules, especially because drinking usually precedes a casual hookup…. Affirmative-consent policies try to address this by recognizing body language as a form of consent.” But I was unable to find any discussion of the sort of body language that would be recognized as consent.
A fascinating column by Jonathan Chait in New York magazine titled, “California’s Radical College-Sex-Law Experiment,” points out additional concerns about the law:
- It surely is possible to imagine that sex that comports with these new guidelines is sexy, or even more sexy than the kind most people have now. Yet one might find these ideas about reimagining sex attractive, as I do, while still having deep reservations about codifying them into law. The fact that we need to change cultural attitudes about sex itself underscores the fact that cultural attitudes about sex lie well outside the contours established by the state of California. What percentage of the last decade worth of Hollywood sex scenes, if acted out between college students in California, would technically constitute rape? A majority? Ninety percent?
- Deprogramming and reorienting societal ideas about sex is an evolutionary process. California isn’t merely attempting to set out to nudge the culture in this direction. It is reclassifying all sex that falls outside those still-novel ideas as rape. A law premised on this sort of sweeping, wholesale change is likely to fail.
I agree with Chait’s criticism of the law, but I am not confident that the law will fail. Because the law is limited to college students, and because its penalties are limited to administrative sanctions by the college (up to expulsion), most people are insulated from its effects. Sort of like preventing adults under the age of 21 from drinking. Divide and conquer.
But I would be shocked “Yes Means Yes” becomes the law of the land for non-students.