Incoming freshman at the University of California, Irvine (UCI) learned at their orientation that any sexual encounters must be accompanied by a step-by-step list of requests before any action can be consummated.
As hundreds of eager students watched, a video showed actors in an educational video offering examples of the proper method of sexual courtship, including definitions of “consent” and what questions to ask before initiating contact, according to The Orange County Register.
Definitions of “consent” included: “It’s talking about what you like” and “Consent is knowing your partner wants you as much as you want them.” Questions suggested to avoid sexual assault charges included; “Is this OK?” “What would you like me to do to you?” and simply, “Do you want to have sex?”
On September 28, 2014, California Governor Jerry Brown signed into law SB 967, which stated: “This bill would require the governing boards 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, in order to receive state funds for student financial assistance, to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking that include certain elements, including an affirmative consent standard in the determination of whether consent was given by a complainant.” Consent was defined as an “affirmative, conscious, and voluntary agreement to engage in sexual activity.”
Arguments over the new standards for sexual behavior abound; Samantha Harris, an attorney with the Foundation for Individual Rights in Education, called affirmative consent “an aspirational standard” that cannot be effective legally, telling the OC Register, “The problem is when you take it from the realm of the ethical to the sort of legal, or quasi legal realm, where you have students being found responsible if they can’t produce evidence of consent,”
Conversely, Shaina Brown, the public affairs manager for the California Coalition Against Sexual Assault, said that the new standards are a necessary change, she argued against those stating the present policies shift the burden of proof to the accused by asserting, “What that says is, unfortunately, we’ve been putting the burden on the accuser.”
According to the National Center for Higher Education Risk Management, roughly 1,500 colleges and universities have implemented an affirmative consent definition in their standards for behavior. But the idea of asking for permission before every single step of the sexual process has been mocked by critics; John Banzhaf, a law professor at George Washington University, asked, “As things escalate, is he supposed to ask before each of the 20, 30, 40 steps. Nobody talks like that, not even lawyers.”
Despite the fact that the California law does not require verbal consent, any sexual encounter can be fraught with peril, as that consent can seem nebulous. As Michael Votava, director of student conduct and ethical development for the Anchorage campus of the University of Alaska, pointed out, “If there were two parties that were involved in a romantic encounter and one party started removing their clothes and started motioning with their finger for the other party to come toward them and had a smile on their face, that’s in my mind, I think a reasonable person would argue that that was a form of nonverbal consent.”
The Orange County District Attorney’s Office has heard of 38 cases of sexual assault allegations from UCI and Cal State Fullerton between 2011 to 2014; charges were filed in 14 cases.