The Politics of Consent: At UC Campuses, Why ‘No Means No’ Was No Longer Enough

By Stacy Finz

In September, Governor Jerry Brown signed into law the Yes Means Yes rule, the first law in the nation to require California colleges to adopt an affirmative consent standard in sexual assault cases. The legislation is controversial, but advocates see it as an acknowledgment that a “rape culture” is prevalent on university campuses, and politicians and campus administrators need to address that.

After decades of “implied consent,” the more explicit “affirmative consent” has suddenly achieved social and political clout. Politicians and university administrators in other states are considering or adopting Yes Means Yes policies of their own. Even the White House has put together a task force to study the problem of campus rape, citing studies showing that one in five female students is sexually assaulted, and has launched an It’s On Us campaign to encourage students, especially college men, to prevent sexual misconduct. The question is, will changing the former standard of No Means No to Yes Means Yes actually cut down on the number of campus rapes?

According to the legislation introduced by state senators Kevin de Leon and Hannah-Beth Jackson, affirmative consent means this: “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. 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.”

The law may be new, but UC Berkeley has been using a Yes Means Yes policy for some time. Yet some sources—including a 2014 state audit—indicate that the University’s record in handling sexual assaults has been less than stellar. The audit, which examined cases at Berkeley, UCLA, Chico State, and San Diego State campuses, found that school administrators have by and large been undertrained, slow to respond, and repeatedly have kept students in the dark about the status and final resolution of their cases. At the same time, the report concluded that the schools performed reasonably well in resolving allegations of sexual assault.

University of California administrators know they need to improve. In June, UC President Janet Napolitano announced the formation of a task force to stop sexual violence at UC’s ten campuses, and in September unveiled her plan, which includes fixing the problems found in the audit. These are the sorts of procedures that Berkeley has already implemented, including providing better trained personnel to investigate sex crimes and to support and advise victims.

“There has been a lot of change to the process,” says Claire Holmes, Associate Vice Chancellor of Communications and Public Affairs. “We want to do better and we know we can do better. We never want a student to have a bad experience. This is an ongoing dialog and we are committed to continually improving the system.”

“It helps cre­ate a cul­ture of con­sent while also cre­at­ing more fair and equit­able re­port­ing and in­vest­ig­a­tion pro­cesses,” Meghan Warner says.

Yes Means Yes is not being universally embraced. Its detractors say that active consent is too difficult to regulate. It’s “he says, she says” all over again. They also see the law as disturbingly invasive—government in the bedroom. And some say the worst part is that the law shifts the burden of proof. Now, instead of the accuser having to prove she or he said no, the accused has to prove his or her partner said yes. And since in most situations the accused is a man, men are feeling especially vulnerable to the new law. Gordon Finley, advisor to The National Coalition for Men, a San Diego–based nonprofit, had hoped the governor would veto the bill.

“It is tragically clear that this campus rape crusade bill presumes the veracity of accusers (a.k.a. ‘survivors’) and likewise presumes the guilt of accused (virtually all men). This is nice for the accusers—both false accusers as well as true accusers—but what about the due process rights of the accused?” wrote Finley, who is also Professor Emeritus of Psychology at Florida International University, in an article on the organization’s website.

Berkeley students and activists Sofie Karasek, 21, and Meghan Warner, 20, don’t agree. The two young women, both of whom reported being sexually assaulted during their freshman year, say the new law is a step in the right direction.

“It helps create a culture of consent while also creating more fair and equitable reporting and investigation processes,” Warner says. “I know Sofie and I have been advocating for this bill since the beginning, and I’m very excited to see California adopt such an important measure for universities across the state.”

But even with the new law, both women believe Berkeley needs to step up in how it handles sexual misconduct. This is not just a university issue, but a societal one. It contributes to what they and many others call “rape culture,” an environment in which no one pays attention to perpetrators unless they’re some creepy stranger jumping out of the bushes.

Warner’s own har­row­ing story has turned her in­to an act­iv­ist. She wants to go bey­ond the Yes Means Yes law and in­tro­duce in­di­vidu­als, es­pe­cially fra­tern­ity mem­bers, to a “cul­ture of con­sent.”

Both Karasek and Warner want to see more transparency and tougher rules in addition to the new law. They believe that without educating administrators, students, and the perpetrators themselves, victims will continue to be blamed and “nice” college men will get away with sex crimes. The system has been particularly lax with college fraternities, too many of which have turned their houses into all-you-can-drink bars with a highly charged sexual environment.

Karasek’s testimonials helped spur the audits in the first place.

Last year, as a freshman, Karasek says she woke up at an off-campus school club retreat to find another member in her bed, molesting her. She did not go to the police, but having been told that the man had attacked at least three other women, she filed a formal complaint with the school in hopes of alerting it to the possible danger the man posed. When officials failed to keep her informed about the investigation, Karasek says she and a number of other students filed complaints with the U.S. Department of Education under the Clery Act, which requires schools to keep and disseminate information about sexual abuse on campuses, and Title IX, which prohibits sexual harassment.

University officials are forbidden from discussing individual student cases and declined to comment on Karasek’s dissatisfaction with the way the school handled her allegations.

Warner’s own harrowing story has turned her into an activist. She wants to go beyond the Yes Means Yes law and introduce individuals, especially fraternity members, to a “culture of consent.”

“It took a while to process what happened to me,” says Warner, adding that she didn’t go to the police after two men at a fraternity party sexually assaulted her when she was a freshman. “I thought that rape was committed by weapon-wielding perpetrators in the dark. I thought I was a disgusting person who brought this on myself.”

Warner says that her sorority’s leaders accused her of getting too drunk at the party and acting in a manner that brought shame upon their sorority house, dissuading her from going to authorities. Eventually, Warner decided what happened to her was not her fault. She quit the sorority and now cochairs Greeks Against Sexual Assault at Berkeley, a nonprofit student organization dedicated to teaching what consensual sex means.

El­len Har­ing was so ap­palled by the antics at her son’s fra­tern­ity that she wrote an op-ed piece in The Daily Cali­for­ni­an at the start of this school year, ur­ging wo­men to boy­cott these events.

“It’s not black or white,” says Karasek, adding that as long as perpetrators aren’t punished for their actions, they have no reason to believe what they’ve done is unacceptable. “If a rapist knows he can get away with it, he’s also more likely to think that [nonconsensual sex] is not that big of a deal.”

Karasek says the campaign to stop rape culture is not dissimilar to Mothers Against Drunk Driving. Isn’t it obvious that you shouldn’t drive drunk? Yet people still do, she says. MADD lobbies for stricter laws that include in-car breathalyzers and educates people about the dangers of driving while intoxicated. MADD credits its own organization for the 23 percent decline in drunk-driving fatalities since 2006.

Meghan Warner says there are places on campus, especially fraternities, where it’s taken for granted that the men will be predatory, and that getting a woman liquored up and having sex with her is considered a “hookup,” not nonconsensual sex.

“A lot of us have been socialized to accept this as normal sexual behavior,” Warner says. “We have to resocialize people to realize that it’s not.”

Ellen Haring, mother of a Cal student, and senior fellow at Women in International Security, a group dedicated to advancing women’s leadership roles in the security field, has some ideas on how to go about this.

Stop going to fraternity parties, she says.

Haring was so appalled by the antics at her son’s fraternity that she wrote an op-ed piece in The Daily Californian at the start of this school year, urging women to boycott these events. She learned about them after proofreading his ethnographic study of Greek life for his anthropology class.

She wrote, “Here is the excerpt that particularly disturbed me: ‘The first priority in planning a party is determining the theme of the party. When choosing the party theme, members of the fraternity often opt for a theme that will encourage sexual promiscuity. For example, a fraternity will choose a theme that forces women to dress promiscuously. In one instance I witnessed the theme Hunt or Be Hunted, in which men dressed as hunters and women dressed as animals to be hunted.’

“Later in the paper, he described the ‘bidding’ process, which is the vernacular for selecting the sororities that would be honored with invitations to their parties.” Another excerpt from his report: ‘When I asked another brother how the fraternity decides which sororities to give these bids to, he simply responded, ‘The most rich, white, and attractive.’”

The University of California now has a single website listing sexual assault resources systemwide, from prevention information to survivor support services.

Furthermore, according to Haring’s son’s paper, the ratio of pretty women had to be two to every fraternity member; that way, the men could choose.

“I have to wonder why young college women anywhere subject themselves to this kind of objectification, but I am particularly surprised by the women of Berkeley,” she wrote in the op-ed piece. “Why would super-smart women voluntarily subject themselves to visual inspections at the doors of fraternities just to get into a party where they outnumber men two to one?”

Brandon Tsubaki, associate director of the LEAD Center’s Fraternity Sorority Advising and Leadership Development program, says, “We work with students to educate them on best practices and university requirements.” And there is strict policy that fraternities and sororities “behave ethically and responsibly at all times, as befits membership in a values-based community,” according to Berkeley’s agreement-for-sponsorship contract.

Berkeley Chancellor Nicholas Dirks understands that campus rape is a grave problem and is in the midst of revamping Cal’s system. He wants to create greater visibility and accountability, including adding more student outreach and education, more investigators, and a new survivor resource specialist, who works for campus police and can guide students in filing reports and finding physical and emotional help.

Associate Vice Chancellor Holmes says that, on all fronts, the University is working hard to improve. For one, during the last year-and-a-half Berkeley has significantly changed its methods of investigating allegations of sexual assault, including allowing victims to bring advisors or attorneys into the fold, and creating an appeals process.

In April, the University launched a survivor support website with a list of resource contacts for victims of sexual assault. And at the start of school this year, Berkeley ran a Stop Sexual Violence campaign. The school’s new procedures, and especially the passage of the Yes Means Yes law, have already fomented a culture change, Warner says.

“People are talking about it,” she says. “Now that it’s law and was all over the media, students want to know what it means and are having conversations about affirmative consent. At Berkeley, many students are requesting consent workshops and consent-based sexual assault resources.”

Stacy Finz is an award-winning Bay Area journalist and frequent contributor to California. Her first novel, Going Home, was recently published by Kensington Publishing.

From the Winter 2014 Gender Assumptions issue of California.
Image source: Detail of Illustration by Jon Krause
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The most disturbing fact of life is that in 2014, 50 years and decades after we thought we were solving the greatest problems that the human race has, we still admit ‘The legislation is controversial, but advocates see it as an acknowledgment that a “rape culture” is prevalent on university campuses, and politicians and campus administrators need to address that.’ We still fail to heed the lessons of history that Will and Ariel Durant recorded, and their paramount conclusion that civilizations fail due to failures by politicians and intellectuals to meet the challenges of change, so our civilization is now in the Fall stage of Decline and Fall because we aren’t doing a thing to solve our violence and climate change problems that are destroying our civilization today.
Curious, if a man talks a woman into driving home drunk, and she gets into an accident and kills somebody, is she absolved of responsibility because she was not capable of consenting to driving? There is just so much potential for false accusations with this system; what can we do bout that? Two people get drunk, they have sex, they both wake up regretting it, but only one of them is a rapist. It happens too often that regret becomes rape in the mind of one of the two involved. How do we protect otherwise good young men from this eventuality, while still prosecuting real rapists and protects real victims?
Which part in this article implies the ignorance toward a death caused by drunk driving? Please don’t use such an unrelated example and then follow up with your idea on false accusations. Where in this article is it mentioned that both parties are drunk? If the act is non-consensual — if a single “no” was uttered — then it is rape. Man or woman, it doesn’t matter.
If the rapist is drunk, does that mean the act of rape is invalid?
With this law, as a man, If I was accused of rape on a college campus I would just say I never gave consent.
What ‘Yes Means Yes’ requires is that all participants THINK about what they are doing, throughout the sexual act. It means the necessity for considering the NEGATIVE consequences of sexual activity now fall on all participants equally. The risk of being creditably accused of rape (and facing all the personal, legal and social ramifications that come with that) now becomes EQUAL to that of being raped (and facing all the personal, legal and social ramifications that come with that). If a man doesn’t want to risk a rape accusation he needs to limit his sexual partners to those he knows well and has reason to trust will NOT falsely accuse him. He also needs to ensure he receives explicit consent for sexual contact, through all stages. Avoiding chemical impairment to himself, as well as choosing NOT to engage in sexual activity with someone who is impaired, would certainly be a part of the equation. To me the outcry from men isn’t just about the risk of a false accusation. It’s also about the fact that they can no longer indulge in opportunistic, predatory sexual behavior whose sole purpose it to ‘score’; without serious risk to their reputation and freedom. ‘Yes Means Yes’ demands that they change, AT A FUNDAMENTAL LEVEL, the way they think about and pursue sexual activity. Why is the risk of a woman being raped seen as less negative, on a societal level, than that of a man being falsely accused? Why does society DEMAND that women be significantly more sexually responsible than their prospective sexual partners? That being said. ‘Yes Means Yes’ also makes it’s demands of women. After all, they too must consider the consequences of their immediate actions. They must give (and get) consent at each step of the process. No more writing it off to being ‘swept away in the moment’ (with the implied lack of responsibility). They must give voice to their consent or their partner cannot LEGALLY proceed.
Yes means yes makes women own their sexuality. I think it is a good thing. A few pages later I had to smile. In the “five questions with Kate Scott,” a woman in a man’s world of sports reporting, in the first sentence of her interview she uses a “nut cracker” metaphor. Perhaps her acceptance would be more forth coming if she used a different metaphor.

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