When I was a college student now more than 20 years ago, sexual assault awareness was in its infancy. When we pictured the act of rape, we thought of the stranger jumping out of the alley to attack the unsuspecting woman. But sexual assault is often committed by an acquaintance.
In 1994, a bipartisan group in Congress passed the Violence Against Women Act which was developed after years of extensive grassroots lobbying.
One of the rallying cries is the notion that “no means no.” Mainly young men were taught that, if a young woman said no to their sexual advances, this was the line of demarcation. It didn’t matter whether she was drunk. It didn’t matter if she had been a willing participant up until a point, and it didn’t matter if she had originally said yes.
Despite these efforts, the statistics are stunning. About one in four college women has been the victim of a sexual assault during her academic career. Somewhere between 70 to 80 percent of these were by acquaintances. Many of these involved alcoholic consumption prior to the assault.
The vast majority of rapes and attempted rapes, 95 percent, are never reported to law enforcement, the National Institute of Justice reports.
This is a crisis. There is no way around it.
So California, for once, is blazing a trail with Governor Jerry Brown a few weeks ago signing SB 967. This law changes the standards for sexual assault and requires college campuses to adopt policies for rape responses that include an “affirmative consent” stand, which puts responsibility on someone engaging in sexual activity to obtain an affirmative, conscious and voluntary agreement from his or her partner.
Sexual assault is a highly personal crime and it is very difficult to prosecute. That is one reason, we suspect, why the percentage of unreported sexual assaults is so high. There are rarely witnesses to the assault, there may be physical evidence, but unless it is a violent rape, it is difficult to prove that it was coerced or that one was an unwilling partner.
“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,” the law now states. “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.”
This shifts the burden from the woman having to prove that she said no and he ignored her protest to the man having to demonstrate that she consented to the action.
Not surprisingly, many people object to changing the burden. Commenters on the Vanguard objected to the notion, implying that the need to obtain consent is onerous and could be ripe for abuse. That is a possibility. However, it is also the case, as one commenter noted, that perhaps the best defense is to abstain from casual sex, particularly if one or both of the parties have consumed alcohol.
Indeed, we have to sign liability waiver forms for children to go on field trips, we have to sign liability waiver forms and contracts in all walks of life – perhaps in the case of casual sex, in order to protect vulnerable portions of the population, we need to do the same.
The problem is that, while we have established that “no means no,” the easy defense is often that “she didn’t say no.”
That said, I take a lot of exception to Debra DeAngelo’s column in the Enterprise this week. She continues to want to rehash a trial that she didn’t even observe personally. But, really, it was this line that got to me: “[T]he ‘she didn’t say no’ defense is no longer valid… Sorry, sleazy defense attorneys. You can’t go that route anymore.”
Look, I get that rape trials are exceedingly difficult on the victim, but that doesn’t mean that defense attorneys are sleazy when they attempt to create doubt in the minds of a jury about whether the victim did not give consent. That’s their job.
If no one witnesses the crime and there is no physical evidence of a forced assault, what other choice does an attorney have? That doesn’t make the attorney sleazy, in our system of law, and the perpetrator, even a rapist, is entitled to a defense.
That said, I think the lessons here, on a college campus which is where this bill applies more so than in a court of law, are as follows:
First, if you are drinking and with a person with whom you have no established relationship, maybe it is better to refrain from having sex, particularly in instances where the intentions of the woman are in question.
Second, if you do have to have sex, make sure it is mutually agreed to and potentially document it.
Is that really where we have gone as a society that we have to document permission to have sex? Well, perhaps in a society where one in four women are raped during their college career and most don’t report it, then yes.
I am as big a libertarian as there is when it comes to civil liberties, but it is time to teach young people that with freedom comes responsibility. You have to sign an agreement to rent a dorm room on campus, so why is it so shocking to reach an agreement to have intimate relations with a drunken stranger?
The real question is why has it taken so long for the state legislature and college campuses to take sexual assault this seriously.
—David M. Greenwald