Understanding consent and when it’s given

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As of 2014, California passed one of the strictest consent laws in the country, requiring all public schools who receive funds for financial assistance to adopt a “yes-means-yes” standard.

“Up until our current legislation and our current climate, the belief was that the absence of ‘No’ was an implicit ‘Yes,’ and that is not the case,” said CSUF criminal justice professor Jarret Lovell.

The law affects the funding for the governing board 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 college institutions.

SB-967 states that school policy must be structured around affirmative consent, which is defined in the bill as “affirmative, conscious and voluntary agreement to engage in sexual activity.”

Is this act consensual?
While it may be common sense that you cannot have sexual relations with someone who is asleep, unconscious or mentally incapable to communicate, not all components of the law are as widely understood.

Consider this scenario. Two people are at a party and have had one beer each. In the moment, they both decide to engage in sexual acts together, but the next day, one decides that they were not in their right state of mind to agree to the act. Was it consensual?

(Courtesy of Flickr)

The answer is no.

The law states that it is not consensual if the complainant “could not understand the fact, nature or extent of the sexual activity” due to intoxication.

“Any alcohol is too much. You have already passed the threshold for consent,” said Cal State Fullerton University Police Captain Scot Willey.

What may seem like a small amount of alcohol for some, can affect others differently, Willey said.

“One beer can be a lot for some people and they may not be thinking. I think it would not be considered right even if (the decision to consent) was made at that moment,” said junior child development major Gabby Mireles.

Other CSUF students said they found this component of the law to be too strict and unreasonable.

“I believe that it would not be fair for the other person that they are probably going to accuse,” said junior Spanish major Alex Bangan. “I feel like it should be taken into consideration if she said yes and then regretted it afterwards.”

Willey said the police department takes false allegations into consideration but its main concern is investigating the claims being made.

“We treat every survivor of a sexual assault the same and that is that we believe their story, and we’re going to investigate the story as much as possible and to the greatest extent that we can,” Willey said.

Consider this scenario. Two people agree to go home together. They agree to start kissing, but the act starts progressing to touching and then to sex without a verbal confirmation that both people are comfortable with moving to the next step. Was it consensual?

(Courtesy of Pixabay)

The answer is no.

The law states that a lack of saying no, resisting, keeping silent or the fact that you are in a relationship with someone does not imply consent and that consent must be ongoing throughout the sexual encounter.

“Consent can be withdrawn or revoked at any time. Once a sexual act has begun, you may have consented for that part of it, but you can withdraw that stand at anytime,” Willey said.

While some find it controversial, Willey said revoking consent can be in the form of words, actions or even inactions.

“I think it is up to you to tell them that you are ready to stop, but if the girl or even the guy is continuing to progress, then I do not see why you would need to stop every time to constantly make sure that everyone is okay,” said freshman communications major Paige Bakkers.

Junior business major Alexis Akpodiete said there are some circumstances in which a person is unable to say no.

“Women or men should give their consent and say, ‘Yes, you can have sex with me’ because sometimes people have sex with other people because they are scared,” Akpodiete said. “It should be, ‘Yes, I want to have sex with you,’ instead of just because you did not say anything that means you really wanted it, when that is just not the case.”

Arguments like these were part of the push to make the California law more strict and stop using a “no-means-no” standard.

“When we were in the ‘no-means-no’ place a few years ago, there was a lot of ambiguity on what ‘No’ would mean, so there was different forms of saying ‘No’ whether that was verbal or in a gesture,” Willey said. “They have moved away from that because it was not working, and so now it is very clear that it has to be ‘Yes,’ it is informed, it is an affirmative conscious decision.”

Political science professor Rob Robinson said that this approach moves the blame from the victim to the aggressor.

“Passing this law, the basic idea, even if it has problems with implementation, is to shift that burden over to … the potential aggressor, and they have the responsibility to make sure that their partner is willing and competent and able to give consent,” Robinson said.

While intoxication and ongoing agreement are two components of consent, they are not the only scenarios the law details. The full text of the law can be accessed on the California Legislative Information website.

Consent on campus

“Sexual assault is one of the most underreported crimes. Our numbers are low, but we are not naive, we know that there are more unreported cases out there that just have not come to us,” Willey said. “Typically, when you are talking about sexual assaults that we deal with, 90 percent of the time, it is dealing with consent.”

Willey said that if a student is a victim of sexual assault, they can seek resources on campus including help from Counseling and Psychological Services, the WoMen’s Center, Title IX and the University Police department, that can offer advice, assistance and victim confidentiality.

“It is important and it is good that we have gotten to this point. At the university, for years, there are so many issues that come up, especially with alcohol and other drugs, that consent is always the biggest issue,” Willey said. “They have moved to a good place where it has to be very deliberate and conscious effort to agree to sexual activity.”

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