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Opinion Why we made ‘Yes Means Yes’ California law

Passersby write messages to sexual assault victims during an event held by the organization 7000 in Solidarity at the University of California, Los Angeles, campus in June. (Evelyn Hockstein for The Washington Post)

Each week, In Theory takes on a big idea in the news and explores it from a range of perspectives. This week we’re talking about affirmative consent. Need a primer? Catch up here.

California state Sens. Kevin de León (D-Los Angeles), California Senate president pro tempore, and Hannah-Beth Jackson (D-Santa Barbara) are the joint authors of the California affirmative consent bill, signed into law last year.

Last month, the Association of American Universities released an alarming report on campus sexual assault. The findings clearly demonstrate the need for an affirmative, unambiguous standard of consent for sexual contact.

Based on one of the largest surveys of college students ever conducted — more than 150,000 students from 27 universities participated — the report found that nearly one in four female students said they had experienced unwanted sexual contact. The assaults were carried out by force or threat of force, or while the victim was intoxicated.

While “no means no” has become a well-known slogan, it places the burden on victims, making it their responsibility to show resistance. It has also been mocked and twisted into offensive slogans by some college fraternities. Others, like conservative radio host Rush Limbaugh, have contorted it further, promulgating the notion that no really means yes “if you know how to spot it.”

[We’re casual about sex and serious about consent. But is it working?]

The problem of sexual violence on college campuses — a problem exacerbated by a societal culture of male entitlement — is made worse by school administrators who quietly sweep assaults under the rug, wrongly thinking that doing so is in the best interest of their colleges.

Since “no means no” has proved ineffective, last year California enacted SB 967, legislation to make “yes means yes” the consent standard on college campuses and to take a major step toward preventing sexual violence. This legislation requires preventative education during student orientation, increased access to counseling resources and training for adjudication panels.

California has created a standard that requires affirmative consent — affirmative, conscious and voluntary agreement to engage in sexual activity — throughout the encounter, removing ambiguity for both parties. The law protects both partners by ensuring a mutual understanding. A person who is incapacitated by drugs or alcohol cannot give consent. And California colleges are being held more accountable for prevention, evaluation and a consistent protocol surrounding sexual assault.

In a court of law, due process is necessary to protect the accused’s liberty. With a high burden of proof, district attorneys are all too often unable to gather enough evidence to prosecute offenders. Because perpetrators are most often repeat offenders, it’s important for campuses to have a way to hold aggressors accountable.

Now, on our California college campuses, there is an administrative adjudication process in place to ensure that students abide by the code of conduct, including affirmative consent, that they agreed upon when they entered college. Disciplinary proceedings evaluate allegations of sexual violence to see whether student codes of conduct were broken. For too many years students’ reports of assault were mishandled, discouraging survivors to come forward and identify themselves as victims and face peer harassment without justice. With a fairer process, more students are coming forward to report crimes, and in time our campuses will be safer.

To better educate California’s youth on affirmative consent, Gov. Jerry Brown this month signed into law a new piece of legislation, SB 695, which requires public high schools to develop curriculum that covers “yes means yes,” the consequences of sexual violence and how to develop healthy peer relationships built on mutual respect.

Over the past two years, campus sexual violence has grabbed the attention of filmmakers, lawmakers and the White House. Much more attention is being paid to this issue — and that’s a good thing. Repeat offenders are being called out. Survivors of rape and assault finally feel that their reports will be taken seriously, and they are filing federal complaints with the Office for Civil Rights in the U.S. Department of Education about the mishandling of their cases. SB 967 was the first such law in the nation, but other states are catching on.

Affirmative consent legislation isn’t just about the more than 20 percent of young women and girls who will have to live as assault survivors. It’s about the 100 percent of women who have to live every day, never quite certain of their physical safety. Research shows that with affirmative consent education, we can create a culture of respect.

California will keep pressing forward with this standard. The protection of our daughters, sisters, nieces and other loved ones is too important.

Explore these other perspectives:

Kara Eschbach: Affirmative consent won’t end rape culture. Here’s what might.

Jon Zimmerman: We’re casual about sex and serious about consent. But is it working?

Alan Dershowitz: Innocent until proven guilty? Not under ‘yes means yes.’

Annie Clark: Why are we waiting until college to learn about consent?

Wendy Murphy: Title IX protects women. Affirmative consent doesn’t.

You. (A live chat with Kara Eschbach and Jaclyn Friedman)