California’s “yes-means-yes” consent bill versus College policy

The California State Senate passed a law last month requiring all universities to implement “affirmative consent” language in their sexual assault policies and definitions of consensual sex. The measure is part of a nationwide initiative to reduce sexual assault on college campuses.
The state senate voted unanimously in favor of the legislation referred to as the “yes-means-yes” bill,. The bill defines sexual consent as an “affirmative, conscious and voluntary agreement.” Silence or lack of resistance does not constitute consent, nor do drugs and alcohol justify unwanted sex, the bill states.
Governor of California Jerry Brown has until the end of this month to sign the bill. If signed into law, it would mark the first time a U.S. state requires affirmative language at the core of college sexual assault policies, said Claire Conlon, spokeswoman for State Senator Kevin De Leon, who championed the legislation.
No California college or university openly opposed the bill. However, opponents of the bill feel it crosses political boundaries and could lead universities to additional legal disputes.
Universities nationwide have joined California in taking steps to push sexual consent policies beyond “no-means-no.” For example, Harvard University said in July that it has created an office for the investigation of all sexual assault claims, and that it will lower the standard of evidence for consideration of assault cases.
Over the summer, the College made multiple adjustments to the way the College addresses sexual violence, including new student-led Sexual Violence Education Workshops for first-years and sophomores.
“The workshops will allow students to hear from their peers rather than being lectured at by adults,” said Grace DeNoon ’15, a facilitator of the new workshops. “I believe this will make students more responsive and hopefully less reluctant to listen.”
The workshops will stress two important terms that the College uses: “Sexual Misconduct” and “Sexual Consent.” “Sexual Misconduct” is the umbrella term the College uses “so that no one’s individual experience is diminished or overlooked because of dangerous myths about what constitutes sexual violence,” DeNoon said.
The College’s Sexual Misconduct Student Guide states that “at Colby, we value sexual activity that is consensual and we consider sexual behaviours that are unwanted, […] nonconsensual, and make people feel unsafe or powerless to be Sexual Misconduct.”
As for “Sexual Consent,” Colby’s defines the term as “informed, freely and actively given agreement, communicated by clearly understandable words or actions, to participate in each form of sexual activity.” The College’s definition of consent echoes the new “yes-means-yes” bill in California.
“It is my belief that a ‘no-means-no’ approach takes too much power and agency away from the survivor […] and in a way suggests that it is their fault is they did not, or were unable to, say no or fight back. […] ‘Yes-means-yes’ allows for instances when the survivor felt powerless, because of coercion or alcohol, to say no. [It] places the blame and onus on the perpetrator rather than on their target,” DeNoon said.
“I believe that Colby needs to more firmly adopt this policy as a way to protect survivors and also help prevent sexual violence in the first place,” she added. “By clearly outlining what consent is, even in as simple a phrase as ‘yes-means-yes,’ […] we can prevent many people from becoming perpetrators or victims.”
In addition to the changes in sexual violence education for students, the College implemented another change this summer pertaining to the review of sexual violence cases. Starting this year, the College will involve an outside investigator in all cases of alleged sexual violence. These changes to education and case handling “are some of the first of their kind, putting Colby ahead of [many other] schools,” DeNoon said.

“These seemingly small changes are, in my belief, a massive leap in the right direction.”
In May, the U.S. Department of Education released a list of 55 colleges under investigation for Title IX violations in the handling of sexual assault or sexual harassment. The list did not include any Maine colleges.