Late last month, Gov. Jerry Brown of California signed the “yes means yes” bill into law. Unfortunately, the new law, which says colleges that receive state funds must agree that affirmative consent is needed for sexual encounters, will not reduce the sexual-assault problem that has plagued college campuses for decades.
The word “yes” or its equivalent is meaningless when it comes from someone who has consumed so much alcohol that she or he is slurring speech, having trouble walking, or vomiting. And this is the case in a majority of sexual assaults: According to the Harvard School of Public Health, one in 20 college women experience sexual intercourse without their consent during the course of a school year, and 72 percent of those cases occur when the victim is too drunk to consent. Focusing on the word “yes” as the key to getting sexual consent is dangerous in colleges’ hookup culture, where most victims are too intoxicated to say yes or no or, in some cases, even to be aware of what is going on.
Although drinking and hooking up may be normal behavior on many college campuses, cases of rape while the victims are intoxicated show clear signs of predatory behavior. Cases have been documented of victims who were so drunk that they were unconscious or fading in and out of consciousness while the perpetrator—or perpetrators—video-recorded or took pictures of the victim to share their conquest with others.
Not only are the cases disturbing, but they underscore another flaw in the “yes means yes” law. Rapists do not care whether the victim is consenting or not. The California legislation implies that sexual assaults occur due to misunderstandings and that the word “yes” will clarify things and thereby prevent sexual assaults. Are we to believe the problem stems from perpetrators—usually men—who mistakenly think women are consenting when they are not?
Although there are many victims of campus sexual assaults, there are few men who commit the crimes; those who do so are largely repeat offenders. Do those men keep misreading women’s signals, or are they indifferent to whether consent is given or not? The absence of the word “yes” is not going to stop serial rapists.
Perhaps those who support the “yes” policy think that it will make it easier to adjudicate sexual-assault cases. The problem is the policy does nothing to deal with the “he said, she said” problem inherent in many acquaintance rapes on campuses. Instead of a perpetrator’s claiming, “She never said no,” he can simply say, “She said yes!”
As much as advocates for victims—myself included—want to put perpetrators in jail, or at least get them expelled from the college where they committed the assault, it is virtually impossible to convict based only on a victim’s account. Although research suggests that the overwhelming majority of those who make sexual-assault claims are telling the truth, there still must be safeguards to protect the accused, as there are for any other crime. If not, we risk having more cases like the 2006 Duke lacrosse debacle.
If advocates for victims accepted that changing the focus from “no means no” to “yes means yes” would not reduce the sexual-assault problem, we could start focusing on solutions with a better chance of working.
First, we need to better educate young people about alcohol, sex, and consent. College administrators should stop telling students never to drink or never to mix alcohol and sex. Students scoff at those admonitions. Even worse is when administrators tell women to stop drinking to avoid their own victimization. A hangover, not a sexual assault, should be the penalty for drinking too much.
Instead, more colleges’ educational programs should focus on telling students that if a person appears to be extremely intoxicated, she or he cannot consent to sex. Although some colleges have tried to do this, too often they have shied away from emphasizing that there are clear, visible warning signs that someone is too drunk to consent. They include: acting confused or incoherent, having diminished motor skills, difficulty walking, and vomiting.
Second, in an effort to prevent a rape from occurring, bystanders can be trained to intervene when they see a classmate exhibiting those behaviors. College students are smart enough to be taught the difference between a tipsy person who is leaving a party of his or her own free will to engage in a consensual hookup and someone who is so incapacitated by alcohol that saying “yes” is meaningless.
When others fail to intervene and a sexual assault occurs, well-trained bystanders can serve as witnesses that the victim left the party in such a diminished capacity that consent could not be given. Those witnesses can corroborate a victim’s sexual-assault claim, so that perpetrators can be held accountable. There will never be a witness that can corroborate whether a person said “yes” behind closed doors.
The “yes means yes” law is just a distraction. The answer to the sexual-assault problem won’t be found in new legislation; we need to better educate students so we can utilize the laws already in place to protect them.
