On September 28, 2014, California Governor Jerry Brown signed SB967 into law, making his state the first in the nation to adopt the "Yes Means Yes" sexual assault rule. New York Governor Andrew Cuomo quickly followed suit, ordering the State University of New York to overhaul its sexual assault guidelines a week later. California's SB967 applies to all California post-secondary schools, public and private, that receive money for student financial aid. The bill will require these schools to shift from the traditional "no means no" approach to sexual assault and instead require "an affirmative, conscious and voluntary agreement to engage in sexual activity." The legislation also states that consent cannot be given if one is unconscious, asleep, drunk, or drugged, and it orders the adoption of "detailed and victim-centered sexual assault policies and protocols that comport with best practices and current professional standards." Under Governor Cuomo's proposal, SUNY's policy will state: "silence, in and of itself, cannot be interpreted as consent."
Critics of "yes means yes" policies question why college students are the only group targeted; a glance at current college sexual assault policy makes the answer clear. Residential campuses have their own quasi-judicial processes that exist outside the existing legal framework, and in recent years these processes have failed miserably. Take the cases of Columbia University's Emma Sulkowicz, Amherst College's Angie Epifano, James Madison University's Sarah Butters, or any of the other 52 schools under Title IX investigation by the United States Department of Education for mishandling sexual assault and harassment. College students need to be targeted by this policy over any other group because of the nation-wide prevalence of rape culture on campuses and the systematic failure of college administrations to properly adjudicate cases of sexual assault. Legislators hope that these new victim-supporting assault policies will reduce the mishandling of rape and sexual assault cases.
"No means no" has failed because our society engenders a belief in young women that sex and sexual assault are things that will naturally happen to them, not acts in which they are active participants. "No means no" requires that the victim of the assault feels that he or she a right to say no to his or her assault, and although that theoretically may be true, in practice many other factors obfuscate even the most basic sexual rights and practices, especially for young women. In a recent study from Gender & Society, sociologist Heather Hlavka interviewed young women between the ages of three and seventeen who were sexually harassed or assaulted. The majority of girls rationalized their experiences and believed that their victimization was completely normal. Hlavka found that these experiences of assault were "overwhelmingly described as Ã¢â‚¬Ëœnormal stuff' that Ã¢â‚¬Ëœguys do' or tolerating what Ã¢â‚¬Ëœjust happens.'" For these young girls "sex was understood as something done to them." Terrifyingly enough, this study was not unique in its findings, echoing previous research demonstrating that unhealthy attitudes about sexuality take root at a young age and that women often do not see themselves as having the power to avoid sexual assault. If women in our society are conditioned to believe that sexual assault is inevitable, as Hlavka's study demonstrates, then a "no means no" standard is grossly ineffective.
A "yes means yes" standard, coupled with better consent education, will help create a society in which victims of sexual assault feel that they have a right to speak up. Hlavka's research clearly demonstrates that women do not feel they even have an ability to say no to those who assault them; they believe these crimes are an inescapable part of life. By changing consent policies, young women in our society can begin to understand that sexual assault isn't something that just happens to them, and that they play an active part in the initiation of sexual activity. Passivity is not consent, and it never should be taken as such. Other states should follow the lead of California and New York. Reports of mishandlings of sexual assault should no longer dominate our news cycles. "Yes means yes" is necessary because it finally addresses the systematic problems of rape culture that have plagued our nation's campuses for far too long.