California Passes Affirmative Consent Bill; Rape Apologists Retreat Into Fantasy

In a landmark piece of legislation, the California Senate yesterday passed an “affirmative consent” bill for colleges throughout the state. The first of its kind, SB 967 explicitly requires schools to adopt a standard of affirmative consent, defined in the bill as:

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. 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 bill goes on to describe in detail what does and does not count — protecting, for example, people who are raped while incapacitated due to the influence of drugs, alcohol, or medication. If signed by Governor Jerry Brown, the bill will require all public colleges and other institutions receiving state funding for student aid to implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence and stalking.

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This image represents both affirmative consent and how I feel about this bill. Via Shutterstock.

Unfortunately, many news outlets have ‘balanced’ coverage of this important piece of anti-rape legislation by giving concerned citizens and rape apologists a platform to propagate misinformation.

The Washington Post included the following quote:

“I feel like their hearts are in the right place, but the implementation is a little too excessive,” Henry Mu, a 24-year-old biology major at California State Long Beach told the Press-Telegram. “Are there guidelines? Are we supposed to check every five minutes?”

From Inside Higher Ed:

How does a person prove they receive consent “shy of having it videotaped,” said Joe Cohn, the legislative policy director at the Foundation for Individual Rights in Education.

And in an AP article run in the Syracuse Post Standard:

Gordon Finley, an adviser to the National Coalition for Men, wrote an editorial asking Brown not to sign the bill. He argued that “this campus rape crusade bill” presumes the guilt of the accused. “This is nice for the accusers — both false accusers as well as true accusers — but what about the due process rights of the accused,” Finley wrote.

These statements spread confusion about what affirmative consent actually is (“yes means yes!” Really not that hard!) and, more dangerously, have little to no relation to the actual world that we live in.

Seriously, just stop. Via Shutterstock.

Seriously, just stop. Via Shutterstock.

To imply that affirmative consent policies turn well-meaning gentlemen into unknowing rapists is to reject the real world in favor of fantasy. Because we do not live in a world where people fabricate stories about sexual assault and report their bumbling but well-meaning sex partners willy nilly — statistically, false rape reports are extremely rare. Rather, we live in in a world where rape prevention is a marketing opportunity directed at potential victims. Where young women are driven out of school due to harassment after reporting sexual assault. Where young men livetweet gang rape. Where protesters come out in droves to side with rapists. Where college universities deem sexual assault prevention programs “not cost-effective.” Where thousands of rape kits across the country sit untested because catching rapists is, apparently, not a top priority.

I could go on.

In short: we live in the middle of rape culture. This manifests in numerous awful ways, but most relevantly to this discussion, rape culture dictates that along with proving that they were raped, survivors must also prove that they fought “hard enough” to stop it. Not saying “no” or not physically fighting someone off, is understood to mean “yes.” And that is a huge problem.

By not accepting silence as consent, California’s affirmative consent bill nudges colleges away from rape culture and provides protection for marginalized groups. Although there are rape victims and survivors of every gender and race, women of color are especially hurt by this narrative. Frequently stereotyped as Jezebels, submissive sex-kittens and hot-headed seductresses, racialized assumptions characterize many WOC as always sexually available, by mere default of their existence. This creates an additional challenge for WOC to overcome when rape victims are burdened with the responsibility of proving clear lack of consent.

This bill won’t undo past violence or reverse the damage that has already been carried out. But it can provide marginalized groups with an extra measure of protection, as well as providing (at least some) current college students with the awareness that’s needed to bring an end to rape culture.


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Laura Mandanas is a Filipina American living in Boston. By day, she works as an industrial engineer. By night, she is beautiful and terrible as the morn, treacherous as the seas, stronger than the foundations of the Earth. All shall love her and despair.

Laura has written 167 articles for us.

111 Comments

  1. Thumb up 11

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    YES to this bill.

    I was a “peer educator” in college, which involved doing a freshmen orientation that attempted to make the “active consent” thing very clear to the new students, and I was appalled by the number of them that, during the Q&A, argued against both that standard in general, and the “there’s no consent if she’s drunk” standard in particular. Fucking awful. Good on California. I hope more state’s follow suit.

  2. Thumb up 22

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    This is fantastic bill, but there are not enough tables in my apartment to flip over in indignant rage at the fucking rape-apologist whining brats.

    ““Are there guidelines? Are we supposed to check every five minutes?””

    YES. IT’S CALLED CONSENT. THAT’S HOW IT FUCKING WORKS. YOU CHECK IN WITH YOUR PARTNER. OFTEN.

    • Thumb up 6

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      I think their fear is that they have to stop, mechanically ask “do you continue providing affirmative consent to the sexual activity in which we are currently engaged?”, and receive an equally mechanical answer before continuing.

      This fear is, of course, utter bullshit, and it’s simply a lack of creativity on their part to make checking in a part of sex that actually makes things more fun.

      • Thumb up 1

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        No that’s not it at all, it’s simply their way of making sure that the other person is coherent enough for sex. Either way, it’s a joke. There are far too many crimes that happen and I personally feel that the people that commit this crimes should be tried in the same manner that those who have committed murder. I say this because there is always something missing and there is no way to get that back. The mistrust, the lack of respect that one shows to everyone. The feeling of hate not only to yourself but to everyone around you can be unbearable. To me it’s an outrage that this “bill” will help.

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          No that’s not it at all, it’s simply their way of making sure that the other person is coherent enough for sex. Either way, it’s a joke. There are far too many crimes that happen and I personally feel that the people that commit this crimes should be tried in the same manner that those who have committed murder. I say this because there is always something missing and there is no way to get that back. The mistrust, the lack of respect that one shows to everyone. The feeling of hate not only to yourself but to everyone around you can be unbearable. To me it’s an outrage that this “bill” will not help.

  3. Thumb up 11

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    All I can think about is every person who’s said no, tried to physically resist and that meant shit to their attacker who did not stop. Then I think about the people who just laid there in terror that it could be made worse by resisting. Yet people are complaining about affirmative consent?
    Flames, flames on the sides of my face. Tears are made of water. Heat evaporates water.

  4. Thumb up 2

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    Does this change the legal definition of rape in any way? I.e. will it be possible to charge/convict rapists who do not have consent? And does it only apply to students? Maybe I just don’t understand the details of the US legal system but it seems super weird to have higher protection for college students than for (the presumably poorer) people who do not go to college.

    Either way, this is NOT A DAY TOO SOON! Some European countries already have similar legislation (Norway, maybe?) and some are on their way.

    • Thumb up 2

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      I wish! But this particular bill applies only to public colleges in California and other institutions receiving California state funding for student aid.

      Even if California were to expand the bill to apply this definition beyond college campuses, it would probably be a long time before anything similar was passed on a federal level (to apply everywhere in the US).

    • Thumb up 3

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      Some of the issue in the US, if I’m not mistaken, is that colleges routinely do not report rape to the police, and even pressure survivors not to report, handling it in terrible internal review boards. Does this bill address how these college disciplinary boards are supposed to function?

      • Thumb up 3

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        It does! Mostly by requiring clear policies and protocols, which I think is a lot better than leaving it up to judgments on a case-by-case basis.

        In order to receive state funds for student financial assistance, 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 postsecondary institutions shall adopt detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards. At a minimum, the policies and protocols shall cover all of the following:
        (1) A policy statement on how the institution will provide appropriate confidentiality for individuals involved in an incident. protections for the privacy of individuals involved, including confidentiality.
        (2) Initial response by the institution’s personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.
        (3) Response to stranger and nonstranger sexual assault.
        (4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview, as appropriate.
        (5) Contacting and interviewing the accused.
        (6) Seeking the identification and location of witnesses.
        (7) Providing written notification to the victim about the availability of, and contact information for, on- and off-campus resources and services, and coordination with law enforcement, as appropriate.
        (8) Participation of victim advocates and other supporting people.
        (9) Investigating allegations that alcohol or drugs were involved in the incident.
        (10) Providing that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution’s student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.
        (11) The role of the institutional staff supervision.
        (12) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.
        (13) Procedures for confidential reporting by victims and third parties.

        Also there are a couple things about community outreach.

        • Thumb up 6

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          Thanks! I was pretty sure I was interpreting it correctly, but so many people were posting on the facebook link I shared with Concerns about how this was going to eliminate the due process rights of all men that I started wondering if the law did go further and entail more than I’d realized. I’m ready to school these rape apologists now…!

    • Thumb up 2

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      I also wonder if people are actually confused about the legal definition of rape as opposed to how it is often portrayed in popular culture, and how it might differ from legal vs cultural understanding of sexual assault, sexual abuse, harassment, etc, and I would hope that defining these terms in the context of the new bill would help.

    • Thumb up 1

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      Canada has had affirmative sexual consent laws across the country since 1992, so this bill isn’t really “the first of its kind” but it is the first one in the states. Limiting it to college campus seems absurd to me. In Canada I can’t even have sex with my husband without verbal consent, which is the way it should be.

  5. Thumb up 4

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    I definitely do agree with this bill. However, unfortunately, the idea that “we do not live in a world where people fabricate stories about sexual assault” is not entirely true. Yes, it is rare, but it does happen, like it did to a close friend of mine.

    A friend of mine, 19 years old at the time, was accused of rape by two 13-year-old girls in his city. They claimed that he was violent, that they were brutally forced, and they managed to cry about it in front of everyone. It was very convincing.

    A fatal flaw in their case, however, was that at the time when my friend supposedly committed these heinous acts, he was out of town for an extended period, and was able to prove it in court. There was no way he could have possibly done any of it, and the charges were dropped.

    Months later, it turned out one of them was pregnant, and given the delivery date, conception happened around the time that she claimed to be raped. My friend agreed with the girl’s father to submit to a paternity test, and it came back negative.

    My friend still claims to be a virgin, and I have no reason not to believe him. I do wonder, however, what would have happened had he not been able to prove that he wasn’t around. Had he been at home watching TV on the date he supposedly raped two girls, how could he have possibly proved it?

    I recognize that this is a rare fringe case, but I still hate the idea of someone potentially being branded for life as a sex offender without having done anything at all. So yes, I do strongly agree with this bill, but I also hope that people who are falsely accused like this have some recourse.

    The sad truth is that not everyone in this world is honest. We have no way of knowing what *really* happened with these two girls, except that it involved somebody else.

    • Thumb up 5

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      Its understandable that you are upset about what happened to your friend. However, believe that your objections to this article could have been fixed by your finishing the sentence: “we do not live in a world where people fabricate stories about sexual assault and report their bumbling but well-meaning sex partners willy nilly — statistically, false rape reports are extremely rare.” No one actually said what you thought was said except while on their way to saying something very different.

      • Thumb up 0

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        To be fair, the sentence is structurally ambiguous. It’s not clear when taken alone whether “willy nilly” was supposed to apply to both phrases joined by the conjunction or only the second one. I actually initially read it the way Sam read it also, was mildly confused, went back and reread it and got it. It’s a bit of a garden path sentence, like “the complex houses married and single soldiers and their families.” (example from wiki) To continue being fair, though, if you as the reader get to the end of the sentence and are confused, it’s sort of on you to take the time to go back and re-parse it.

      • Thumb up 7

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        Aside from the fact that Sam’s “counter-example” would be totally unaffected by this law, I think its more likely that the author assumed that no one who wasn’t a rapist would actually ever think that active consent wasn’t a really excellent requirement. But sure. We could also go with the interpretation that Sam’s misquote of the article was correct, the phrase “statistically, false rape reports are extremely rare” wasn’t actually present as a clarification but a repeated hallucination, and that there are many common times when silence and “yes” are interchangeable. Why just the other day my friend asked me if I wanted ice cream and to show my enthusiasm I said absolutely nothing at all. *rolls eyes*

    • Thumb up 1

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      When you reply to a conversation like this with a very specific case that actually has nothing to do with the law (in your case, if they were 13, it would be statutory rape and follow different guild lines) you are derailing the conversation. You are bringing in random instances that break up the logic of the actual conversation. That helps no one.

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      Thank you for sharing this. It seems like the comments here are very one sided and assume that everyone is a mature, rational adult. It is nice to see that someone understands just how SCARY IT CAN BE BEING A MAN with laws like this. I’m not saying the law is bad, I’m just saying that it isn’t all good either.

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      I agree that we do live in a world where women fabricate sexual assault stories, and it is probably not as uncommon as you would think. I do think that the situation that rape apologists think of- women fabricating stories just to I don’t know, be a bitch- is an extremely rare occurrence. But according to SVU (I would love to do some research to verify but I am studying for exams), young women most often use fabricated stories to explain away a consensual sexual encounter to an authority figure. While we can’t really say what happened, a possibility is that her parents found out she was having sex somehow (possibly after she became pregnant), and she panicked and made up the story to avoid the consequences. I’m not sure that’s what happened in this case, but it’s pretty disgusting that it’s happening at all. It says a lot about someone as a parent if their kid would rather take an innocent person to court than be honest.

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        Just to add, while these situations are unfortunate, I do not think this law is actually would have changed anything for your friend. It DOES NOT mean that we can convict men of rape without any evidence. So while the story is sad, I’m not sure that it is relevant.

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        Your initial comment is “legitimate” only in the sense that it exists. That doesn’t mean that it’s a well-constructed comment or a useful one in furthering this “dialogue” that you so graciously explained to me. So, once again, I implore you to expand on your brilliance and mansplain to me how the author of this article demonstrates a lack of communication in her discussion of this bill. That would provide you ample opportunity for you to provide the LEGITIMATE interpretation of the bill, since you claim that the author failed to do so.

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      Victim blaming happens… And it totally isn’t cool..

      But people still need to be presumed innocent until they are proven guilty. The burden of proof doesn’t belong on the accused…

      Rape is terrible. And this law will probably statistically do a lot to punish rapists.

      I was so scared the first time I had sex (with another guy)… Sex isn’t always so clear cut, especially when you are figuring things out. I probably wouldn’t have said not first time, but I really wanted to. I was so angry later. But certainly if I actually did say no nothing would have happened…. My point is that emotions in sex are hard.

      Maybe I am confused. This law would make it easier to prosecute rapists, but This law would also make it easier to prosecute innocent people right?

  6. Thumb up 6

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    Sexual assault is one of the most heinous of crimes. Sexual assault is definitely a major issue on campuses across the US. So are drinking and drug use. Society and communities must act to address these issues. They are maladaptive to people and the larger culture.

    As a student at a major US university in California this law applies to me. I am against SB967. Let me be clear. I am against SB967. Let me be very, very clear again. That doesn’t make me pro-rape. Please. That is so absurd.

    The problem with SB967 is that is raises concerns that haven’t been adequately answered. This article’s extremely over-simplified view of sexual assault is also disturbing. The article states “yes means yes!” Really not that hard!” Please let me explain how it can be much more complicated.

    For example, from the article the bill states “affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.” Time to keep your emotions in check and think like a lawyer for a second. The law states consent can be revoked AT ANY TIME. At any time means even after the sex act has taken place. The law DOES NOT SAY “revoked at any time during the sex act.” So the law reads yes means yes, but one can change their mind at any time and re-classify the act as non-consensual even days, weeks, or months later. You may be thinking that this isn’t what the writers of the legislation intended but it doesn’t matter what they intended. It matters how these issues with SB967 are hammered out in the courts of law should it become law. So a judge can easily interpret the law doesn’t present any limitations on when a person can withdraw consent, even after the fact.

    I want to make it abundantly clear that I’m not speaking of reclassifying sexual assault as not an assault. Rather I’m worried about when two people enter into affirmative consent and have sex consensually and then later one person feels there wasn’t consent.

    The above article states that those people who had questions about the law are out of touch with the “actual world that we live in.” The writer of the article seems to need to state what planet she is living on then. On Earth, in the US, drinking and sex go hand in hand whether that is a good idea or not. Where do people often go to meet? Bars, nightclubs, house parties, and school functions (where alcohol is allowed or condoned). I know married couples who tell me they always have a drink or two (or some other drug) before sexual intercourse with each other. It’s because alcohol is widely used as a social lubricant.

    My issue is when two (could be more) people (who aren’t rapists) have been drinking but are still able to affirmatively say yes both through body language and verbal communication. The next morning one person says, hey last night was great and the other person asked “what are you talking about? I don’t remember anything from last night.” This is because of their VOLUNTARY consumption of alcohol or some other drug. All of a sudden the person who has memory loss has all the control how that sex act is defined and goes down in history. They can say I may have said yes and acted like I was into it last night, but this morning I’m not OK with it and furthermore I don’t remember giving affirmative consent. This should be very scary for every student in California because this type of thing happens often. The article states this is rare but of course doesn’t cite a credible source of that information nor states any figures. So in other words, the author has the OPINION it is rare.

    Regularly, I hear people say they don’t remember certain things from when they were drinking or using. Sorry author, but this is not a rare thing when it comes to alcohol. Have you ever had a friend who did something embarrassing while drunk? Not exactly a rare occurrence in America. Now, some of those embarrassed folks will feel shame or guilt because of what they chose to do while drinking and it is common for those people to deny remembering these events, even when they do remember, as a method of coping with their guilt or shame for their consensual, embarrasing behavior.

    Some will say that the person should never have engaged in sex with the person who can’t remember. How can you tell that the person can’t remember until the next day? It can be extremely difficult to judge by their behavior while drinking who will or will not remember the events the next day. If the assessor has been drinking themselves then assessing another becomes even more problematic. So the logical question becomes: if one is not a rapist and wants to engage in consensual sex with another student how can they assure themselves the other person was sober enough to consent without breathalyzers or other diagnostic tools even if the person gave behavioral and verbal consent? Does it even make a difference if one can withdraw consent after the act?

    Think about married students who are getting divorced. There had been problems with the marriage in the months prior to finalizing the divorce. One husband tells the other husband they didn’t really want to have sex in the time leading up to the divorce and furthermore although the one not feeling it went along with the sex act they now feel it is sexual assault because their soon to be ex-husband didn’t get affirmed consent? Nobody can tell me how this scenario will play out until SB967, should it become law, be tested in court. So one divorcee claims the other divorcee sexually assaulted then in the days prior to divorce. A judge can determine this was not sexual assault or determine that it was sexual assault under the law. If the judge decides it is sexual assault then there will be an avenue for vindictive divorcees (I bet the author doesn’t believe vindictive people exist on this planet) to at least destroy their ex-husbands reputation effecting all aspects of their lives. A legal precedent will have been set. This is incredibly dangerous. It like the “stand your ground laws.” Protecting your home and family from invaders seems like a great idea but it appears that non-invaders (especially men of color) have been shot and killed without legal recourse. There are unintended consequences to legislation we have to keep in mind when they are enacted.

    To vilify those who think this poorly written legislation somehow means they are pro-rape is beyond the pale. It makes no sense. Rape apologists would be advocating that no consent, whether passive or affirmative, is necessary. None of the “rape apologists” cited above made that assertion. They simply had questions about how the courts will interpret this law should it become law. They should have questions.

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        Phil, do you need for me to explain what “legal” means? It means, in a nutshell, that if a case were to be put into the court systems, Canadian law would decree that an intoxicated individual would not be able to provide consent, therefore there would be no legal recognition of “consent” on behalf of the intoxicated party. Having something illegal doesn’t necessarily deter people from partaking in the act, but when brought in a court of law, it will constitute a criminal act.

        I’m surprised someone as smart as you would need an explanation for how laws work.

          • Thumb up 6

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            Aww, I didn’t get to see the troll’s loquacious responses…what a pity. My blood pressure can’t reach that critical peak unless I process every random man’s precious opinions that comes here.

            But at least I got Geordie <3

        • Thumb up 9

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          This desire to protect the right to have sex with intoxicated people worries me. The reason many survivors don’t come forward is because of fearing not being blamed. Memory loss and disorientation the morning after is not indicative of a consensual sex act.

          • Thumb up 7

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            And that bothers me. Why can’t some people understand that a person who is drunk, stoned, high or otherwise mentally incapacitated CANNOT give consent? Consent can only come from a rational and aware individual. Period.

          • Thumb up 1

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            “Oh, sorry Officer, I’m drunk. I can’t be held responsible for my actions, therefore I shouldn’t get a DUI because my decision making was clearly affected and, had I been sober, I never would have decided to drive home while intoxicated.”

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            “Consent can only come from a rational and aware individual”

            So that rules out the entire staff of Fox News then.

            Bummer 🙁

      • Thumb up 1

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        Huh. Today I learned that my past sex partners and I have raped each other multiple times. To our great enjoyment. Honestly, if that law is on the books, everyone’s who’s had sex under the influence is a rapist. And that’s got to be a majority of people in countries where sex is considered a social lubricant.

    • Thumb up 9

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      The kind of culture that connects alcohol and sex REALLY worries me. Because the kind of culture where people feel like they have to use alcohol to be comfortable having sex is the kind of culture that shames people for having sex and spreads rampant misinformation about sex.

      Honestly, if this bill discourages people from relying on alcohol as a “social lubricant” or whatever for sex, I am more than okay with that.

      • Thumb up 3

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        I am actually very not ok with the general idea of that. I’m sure if you think for a minute, you can come up with several dozen examples where “toxic culture makes people do X not-great thing to feel comfortable, so we will make X illegal and that will help” is really not a great idea.

        I also worry that making a very common thing illegal causes an uneven standard of enforcement that can make room for systemic power abuses, similar to the several high profile cases where GLBT underage youth are prosecuted for having uniformly consensual relationships with other underage youth, when similar straight couples aren’t- basically, “we won’t enforce this because we know it happens all the time, unless we happen not to like you.”

        THAT ALL BEING SAID, it looks like based on what Laura quoted below (which I did not independently verify), this bill does not do that. Instead, it has a “too intoxicated to understand” provision, which will probably prove to be difficult to defend one way or another in practice, but certainly makes sense in theory.

        • Thumb up 7

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          I agree on both counts. I read through the text of the bill and I think it is a good piece of legislation. It doesn’t state that any level of intoxication makes it impossible to consent, just intoxication severe enough to make the individual unable to understand what it taking place. That makes a lot of sense to me.

          That said, I feel like people are being too quick to dismiss people’s concerns about ambiguities in the language of the bill or about the potential for unfair enforcement as illegitimate. As with most laws, laws against rape/sexual assault have historically been (and often continue to be) enforced unfairly against poor people, people of color, and LGBT people. It isn’t accurate to assume that anyone concerned about the due process rights of the accused is a rape apologist, and I feel like there is a little bit of that happening here.

          I also think it’s a mistake to act like there are no ambiguites when it comes to sexual assault. There were druken hookups I had in college where looking back it probably shouldn’t have happened – times when I was intoxicated enough that had someone pressued me to do something I wasn’t comfortable with, they might well have succeeded without the use of physical force. However, I was lucky enough that that didn’t happen, I didn’t do anything I didn’t want to do, and I woke up feeling just fine about the situtation. To say that my partner and I raped each other because we were both drunk feels very wrong to me. It also feels deeply disrepectful of my friends and family members who have suffered serious trauma from being raped to equate their experiances with my ill considered but perfectly pleasent ones. The truth is that there are grey areas – we should teach people to avoid these as far as possible to ensure that every sexual experience they have definetly involves true affirmative consent, but it doesn’t make sense to me to ignore the fact that some experiences cannot be easily classified as either “rape” or “totally fine”.

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      You clearly don’t understand this at all, so I will explain it. :Consent can be withdrawn at any time” does not mean that if someone consented to sex and regrets it a week later, they can retrograde-deconsent and make it rape. It means that if a couple starts having sex, and one of them wants to stop, the couple has to stop. Because some people think that men are such animals that once you tell them “yes,” they literally cannot be responsible for anything that happens until they orgasm. Crazy right? But people actually think this way and it actually has been used to blow off rape cases. As though men have less control and capacity for communication than most animals (because even my pets have always understood that “no” means stop scratching the couch or chasing the birds *right now,* not when they feel like they’re done)

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      Because #notallrapists, amirite? Right? …you there?

      Yes means yes is really not that hard. But if you still have to think “if one is not a rapist and wants to engage in consensual sex with another student how can they assure themselves the other person was sober enough to consent without breathalyzers or other diagnostic tools even if the person gave behavioral and verbal consent?”, then rest assured, no one is going to want to have sex with you. Problem: solved.

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      Finally someone who actually thinks a bit deeper than the majority of bafoons I have come across in this site. There are two perspectives in every story and this article only manages to accept one of them, claiming that the other one is almost always invalid. I certainly hope that the governments don’t make it easier for every single psychologically unstable person to claim that they have been raped just to get some misguided revenge against an innocent man. Most of the time it doesn’t even matter if you were found guilty or not. Your reputation will be destroyed by a single accusation like this. And even when they are proven wrong, there is no retribution against the false accuser. Don’t take me wrong, I too think that rape is one of the worst crimes that mankind has come up with, but don’t be naive in thinking that the women are ALWAYS the victims in something like this.

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    The first time my ex-girlfriend and I went on a date we met at a bar, had a few drinks, then she asked me if I wanted to come to her place and we had sex. So that was actually rape. In the course of our relationship we often went to parties together, drank alcohol, often had sex after coming home. Rape, every single time.

    Rape culture is real and many issues need to be addressed, but saying that you can only legally consent to sex when you’re sober is ridiculous.

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      I think there might be some confusion here. The text of SB 967 refers to alcohol use in the following way:

      (B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.

      So what you’ve described (having consensual sex after a few drinks) would not be classified as rape. The scenario that this bill addresses is when someone has had so much to drink that they don’t know what’s going on. That person is not able to give consent. It’s not okay to go ahead anyway.

      Hope that clarifies things!

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        May have been a mis-threaded comment replying to Paper0Flowers’ comment about Canada?

        Back on topic about the bill, I like that language in theory but will be interested to see how it pans out in practice.

        Actually interested in seeing how the whole bill pans out in practice, really.

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          Me too! Things are so bad at so many colleges right now, it seems like this bill could only help. But I could be wrong.

          One thing that worries me is how readily discussions have branched off into these crazy hypothetical fringe cases that distort what’s actually in the bill. (Like, literally nobody is promoting the idea that people should be able to revoke consent after the fact. That’s not a thing.) It reminds me of when people were objecting to the ACA because they were worried about “death panels.” That kind of willful misrepresentation spreads really quickly, and it ends up swaying people who probably actually do like the original thing and only object to the distorted version.

          But anyway. I guess we’ll see.

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          I think that, while it’s possible that there’s willful distortion happening to *start* thoughts like “death panel” or “consent can be retroactively revoked years later”, they get perpetuated by scared people who are legitimately very afraid of those potential, but highly unlikely, legal consequences of the law. It’s a case of the devil they know versus the devil they don’t. So if I’m talking directly to someone who keeps bringing up one of those concerns, my initial strategy is to give them the benefit of the doubt and think/say, “ok, those are some pretty scary consequences that it sounds like you’re really afraid of. Rest assured that I also agree that those things are bad and ridiculous, and I’ll be one of the first speaking out against them if they do happen. However, historically, most of those concerns about obvious misinterpretations turn out to be false. So considering the situation is really bad right now, let’s just wait and see.”

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        Well above PaperofFlowers wrote:

        “I’m not sure how it acts from state to state, but in Canada someone cannot consent to a sexual act if they are intoxicated, full-stop. Even if they are lucid and verbally communicative in the moment, legally they are incapable of providing consent.”

        So that would mean that sex, even after just one drink, would be rape.

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          No. That’s actually not what that means. For example in New York, intoxication is set at an alcohol level of 0.8, which is proposed as a point at which a person’s decision making capacity and motor function is impaired, as opposed to about 0.056, which is when they would feel more of a buzz. If someone is admitted to the emergency room and they have an alcohol level of 0.08, they cannot be discharged until their alcohol level drops because they are considered not in a state to make decisions about their health. But if someone is walking normally, talking normally, and had one beer, a doctor can’t say “oh my god! alcohol! you are stuck here for 24hrs so i know every drop of ethanol in your body has been metabolized.” Honestly guys, sometimes I think these commenters are intentionally ignorant so they have something to complain about. I mean, its the same rules for driving, and I know this and I don’t even drive.

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        I understand what you’re saying, and it certainly makes sense, but there is nothing in this legislation that I’ve read which specifically indicates the difference between what I’ll call “acceptable inebriation to provide sufficient consent by either party” and “incapacitation.” This law, as I understand it, is incredibly similar to much of the legislation adopted by the United States Armed Forces in their attempts to mitigate sexual assault in in their communities. What’s transpired in that community is that, essentially, any consumption of any substance in a given situation which may cause inebriation or incapacitation in any amount constitutes a situation where the individuals involved are incapable of giving proper consent in the definition that does not constitute a sexual crime being committed.

        Because inebriating substances have different effects on our biological systems in different amounts, it could very well be that a few drinks renders an individual incapacitated, and therefore creates a situation where consent is unable to be given in the legal sense. This is one of those conundrums where I’m certain the court system will fall back on the sentiment that any amount of a specific substance which may render an individual incapacitated constitutes a situation where proper consent cannot be given. In a vast majority of these cases, even if there was mutual consumption of inebriating substances, it’s almost certain the man will be at fault. I have seen this myself in a multitude of occasions where I don’t believe any one individual could be labeled a “victim” in a rational sense.

        Women are more often than not the victims of sexual harassment and assault, there is ample evidence of this, it’s something that no self-respecting human being could argue. However, the assertion that there isn’t a prevalence of false accusations against men is absolutely absurd. Because women will generally get the benefit of the doubt in a legal situation, the onus is on the accused to prove that he did not commit such acts. This is an incredibly arduous undertaking, how do you actually prove you simply participated in a consensual act versus committing a sexual crime? I’m sure somebody will provide me with a succinct and seemingly simple answer, but in reality it’s not so simple.

        I’ve lost myself in a diatribe, and for that I apologize. I have a brother who will be attending University very soon, in nearly a year’s time. I’m going to tell him to stay away from relationships on campus because it’s too risky. He is a shy, innocent, loving young man. But in today’s world where the man is represented as either the fickle, incompetent, loveable idiot or the demonic, lewd, lascivious creature, I just don’t see it any reason to mitigate the legal backlash where it may come, especially with something as simple as sexual intercourse with your peers.

        If you disagree with me and think i’m wrong, which I’m assuming will be most who read what I have to say, that’s fine. I only ask that instead of ad-hominem attacks and simple conjecture, you arouse my interest with a proper rebuttal. Keep in mind as well, I come from a school of thought where it’s understood we live in a society that as a man, you can be the victim of statutory rape, then be legally obligated to pay for the child that is a bi-product of your victimization without any notice.

        http://www.usatoday.com/story/news/nation/2014/09/02/statutory-rape-victim-child-support/14953965/

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          You are actually for one thing incorrect, women are almost never given the benefit of the doubt in this situation. This is just so off base its laughable and you clearly don’t know what you’re talking about. 3% of rapists go to jail. and studies have shown like 6% of college men will admit to sexual assault if you don’t use the word “rape” in the description of what happened. Google it. You’re just wrong. women are given the benefit of the doubt *on this website.* We are not the legal system of America.
          Secondly, this is referring to a very extreme form of incapacitation/inebriation where one person literally does not know what is going on- i’ve never been unable to tell that one of my friends is so out of it she doesn’t know where she is or what’s happening or how to walk. But more importantly, I think the whole aim of this bill is that “s/he didn’t fight me hard enough” or “s/he didn’t say ‘no’ loudly enough” is no longer a valid argument. If there is evidence that one person was incapacitated to the point that they were unaware of what was happening to them, then the person who penetrated them or whatever else is guilty of rape. It doesn’t matter how that person got that way.
          And then there is the other argument going on where guys keep on saying “some of us feel that its not worth having sex at all because rape accusations are too scary.” To this I say, “good.” If you honestly believe that you cannot determine who is incapacitated and who is not, don’t have sex. If you are worried you might rape someone “accidentally,” don’t have sex. If you don’t trust your partner enough to trust that they will not lie about a crime that is rarely proven, where daily life shows the accuser is more likely to be vilified than the accused, don’t have sex. I’m like totally ok with that solution. Its not a counter-argument.

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            And then there is the other argument going on where guys keep on saying “some of us feel that its not worth having sex at all because rape accusations are too scary.” To this I say, “good.” If you honestly believe that you cannot determine who is incapacitated and who is not, don’t have sex. If you are worried you might rape someone “accidentally,” don’t have sex.

            …and then maybe do some work on communications skills, consent, and negotiating sex with partners so that you no longer feel that you are unable to determine who is capable of consent and what enthusiastic consent looks/sounds like. SO many people manage to have enthusiastically consensual sex all the time, and it’s amazing (speaking from experience). Don’t you want that for yourself?

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      I think you’re really taking this too far, but alright, here’s something that talks about legal consent and intoxication in Canada.
      How drunk is too drunk to legally consent to sex? There’s no clear answer, and case law suggests judges and juries can be biased by traditional standards of how women should behave when it comes to drinking and partying.

      Janine Benedet, a law professor at the University of British Columbia, has studied Canadian sexual assault cases involving intoxicated victims. Her research found that judges and juries were much more likely to determine a woman was too intoxicated to consent if the accused drugged her without her knowledge.

      “Legally, it shouldn’t make a difference what the source of incapacity is,” Benedet said. “I think it really does reflect a very deep-seated, a very longstanding tradition of holding women responsible for getting themselves into trouble when they drink and take drugs. It’s very much an idea, even when it’s not expressed that way, that well, you were kind of asking for it.”

      The general idea that I’ve always been taught is: If you would not consent sober, then your consent while intoxicated is not legally recognized. Take that as you will, but saying that everyone you have sex while having alcohol = rape is kind of missing the issue of pressing charges against your partner…

      http://blogs.windsorstar.com/news/sexual-assaultintoxication-feature

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        Oh man, this comment is a mess. This is what I quoted from the linked article:

        “How drunk is too drunk to legally consent to sex? There’s no clear answer, and case law suggests judges and juries can be biased by traditional standards of how women should behave when it comes to drinking and partying.

        Janine Benedet, a law professor at the University of British Columbia, has studied Canadian sexual assault cases involving intoxicated victims. Her research found that judges and juries were much more likely to determine a woman was too intoxicated to consent if the accused drugged her without her knowledge.

        “Legally, it shouldn’t make a difference what the source of incapacity is,” Benedet said. “I think it really does reflect a very deep-seated, a very longstanding tradition of holding women responsible for getting themselves into trouble when they drink and take drugs. It’s very much an idea, even when it’s not expressed that way, that well, you were kind of asking for it.””

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    I think that every man, shortly after having sex, should text his partner with something like “Thank you for a wonderful night.” That way, when she texts back, “Thanks, it was fun” or something, he can prove consent. It’s horrible that you should need to do that after intimacy, but apparently we are in a world where a man has to be able to prove that a women consented, or get thrown in a cage for 20 years.

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      First of all, this particular bill sets a state standard for college sexual assault policies. Colleges cannot have you “thrown in a cage”, the worst they can do is expell you. Second, no sexual assault bill changes the reasonable doubt standard that applies to all criminal cases. In the US, the burden of proof is on the prosecution who must establish all elements of the crime the defendent is charged with beyond a reasonable a doubt. An affirmative consent standard does not shift the burden of proof to the defendant, it simply provides the possibility of justice for victims who did not say no (for example, because they feared for their life, because they were unconsious, or because they were too intoxicated to understand what was happening or to communicate).

      I try to give people the benefit of the doubt and provide answers to the best of my ability, because I recognize that sexual assault is a complex issue and that many people have understandable concerns. Hopefully I’ve been able to clarify some things for you. Please understand though, that people have very good reasons for reacting with anger to comments like this. Most rapes are never reported (for many reasons, including the victim blaming him/her/themself, fear of being treated poorly by the police, and fear of being ostrocized for coming forward). Of those, many are never prosected and even fewer result in a conviction. It’s estimated that only about 3 percent of rapists ever face any jail time for their crimes. Certiantly there are a few people who are falsely accused of rape who end up being convicted – just as there are people falsely convicted of all crimes – but there are many, many, more rapists who never face any consequences for their actions and continue to offend with impunity. Even amoug my close friends and family members I know multiple people who are rape and/or sexual assault survivors – this is not a minor issue, but one that touches everyone in some way. Making a comment about sexual assault that ignores these facts and doesn’t even mention the needs of survivors makes you appear ignorant and selfish.

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    I say yes to this bill because it addresses an important issue in our society as well helping everyone to understand what consent, and ongoing consent, means. NO ONE should see this bill as some kind punishment or some kind of tool to be used by accusers.

    However, I do say ‘no’ to the idea of rape culture. We are not a culture that glorifies or protects rapists or rape. Just as those who may be labeled rape apologists cherry pick their data and come up with wildly inaccurate scenarios involving rape, so the same may be said of those who perpetrate the idea of rape culture. The promotion of such an idea is damaging to EVERYONE and only inhibits the freedom of communication and intimacy between the genders.

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    Keep in mind this law applies to all California students whether they are gay, straight, bisexual, asexual, transexual, intersected, two-spirited, or queer.

    Let’s say a person accuses another person of sexual assault. The accused says there is one problem, we’d have to have sex in order for there to be assault. The accuser says they did have sex. Then the accused says they (he or she) was intoxicated and doesn’t remember a thing about what the accuser is talking about. So if the accuser is saying they had sex then the accused can say the accuser is the one who committed sexual assault since the accused couldn’t have given affirmative consent while that intoxicated.

    SB967 has many verbiage and state tax dollar funding that I support. For instance, linking a victim to support services, not just providing information about them. Mandating outreach and prevention programs. Drop the affirmative consent language and you have a bill that is widely non-controversial except maybe for fiscal conservatives. Affirmative consent will change the legal playing field in ways that none of us can foresee and it may or may not benefit victims of sexual assualt.

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          It’s a valid hypothetical. The eyeroll gif was in no way constructive (and really just an ad hominem if we give any shits about being objective).

          If the law states that you’re unable to give affirmative consent for sex while intoxicated, shouldn’t women be held to that same standard as men? If a woman has sex with an intoxicated man, despite his “consent”, is that not rape by the same standards set by this law? If not, the law is clearly in violation of the equal protection clause in the 14th amendment.

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          ^Imnotregistering, I can tell you that the vast majority of the readers of the site, even the ones that think you’re awful, agree that women should not rape women either and agree that laws that are meant to make it easier for campuses to respond to when men rape women should also apply to men raping men, women raping men, women raping women, third-gendered people raping men and whatever else you want to throw out there. We are generally against raping people.
          If you though honestly want to protect men from being raped by women, I don’t know what your problem with this law is. If you are upset that reports of men being raped are often dismissed because of the assumption that men always want sex and are always receptive to sex and shouldn’t complain about someone violating their body because something resembling sex happened, then congratulations! You, like those of us who regularly read autostraddle and liked this article, are upset about rape culture. Because the notion that men always want sex and that its natural for them to constantly do anything necessary to get it is used both to tell men they shouldn’t be upset that they got raped and to tell society that when men rape, its just “boys being boys” and nothing to punish them for. Both of these consequences are part of rape culture and both are things that upset the vast majority of us.

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      Maybe this is actually a serious question but let’s look at the quote that Laura gave about how they define intoxicated for the purpose of this bill: “The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.”
      If this is one of those inflammatory/angry ‘i have a couple of beers and have sex all the time, now i’m a rapist/rape victim” comments, you’re not helping your cause by being intentionally obtuse. But if you really don’t get it, you know you’ve seen someone at some point in your life who is *that drunk*- drunk like they can’t really walk, don’t know what’s going on, seriously slurring if talking at all- type of drunk. I would be amazed if two people who are that drunk have the capacity to initiate and follow through with sex with each other.
      But, with actually complete seriousness, I would also like to say to all the people whose sexual encounters always required large amounts of alcohol, to the point that they are worried that it is the level of intoxication discussed by this law: This is not healthy. This is not indicative of psychological wellbeing; this is not predictive of physical wellbeing. I encourage you to get help.

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        Bringing up hypotheticals is not obtuse. It’s an important part of critical reading and shouldn’t just be brushed away because you personally think it’s too unfathomable to happen. If you’re going to support the creation of a law, you should consider the ramifications of that law in all reasonable scenarios. If not, I sincerely hope you never, ever end up in the legislature.

        So yeah, two people are *that drunk*. They have sex. What happens?

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          If two people are so drunk that they have sex with each other without realizing that they are having sex, the first thing I would do is look for whoever it was that positioned their bodies in such a way that the act was physically possible and charge that person. I mean, I do have a friend who once claimed to have had sex with a guy “accidentally,” but I was pretty sure she didn’t actually trip and fall on his penis. But maybe this is a real thing that happens to straight people. If so, if neither of them realized that they were having sex even if they both participated, I’m pretty sure they would both be found non-guilty because you need to intend in moving in such a way that it results in you participating in a sexual act with another person for you to be guilty of rape. unless its statutory rape in which case the overage participant who had sex without knowing s/he was having sex would be guilty of rape. That is what should happen based on this law and existing law.

          And Imnotregistering, I apologize for not taking this hypothetical seriously. I assumed that it was one of the many comments that seemed to be based on a (perhaps at times intentional) misunderstanding of how “too incapacitated to know what’s happening” and “not sober” are not identical things. But seeing as your user name suggests that you didn’t understand that you were registering with autostraddle when you typed in the username “imnotregistering,” I can understand how this is a valid concern for you. It seems like you don’t know what you’re doing a lot of the time, and this would be concerning for anyone. If you do in fact have some sort of depersonalization disorder that prevents you from knowing what you are doing throughout your day, you would also probably be found not guilty of things that you do without realizing it by reason of insanity.

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    To everyone that doesn’t understand affirmative consent: What kind of awful sex are you having? If your partner is groping you in return, or making pleased noises, or otherwise actively participating in the proceedings, that communicates ongoing consent. If your partner isn’t obviously enjoying themselves or is lying back and thinking of England, you need to check in with them. It’s not that hard, I’m probably an aspie and I get this. The goal of sex is for all participants to enjoy themselves, if you can’t understand this you should never have sex with anyone.

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          It really seems like a bunch of people showed up (perhaps following links to this article on social media?) and have no clue. I have never seen this many people who are so decidedly not the AS crowd in the comments, but perhaps I just haven’t been reading long enough?

          But yeah, sometimes my girlfriend asks me if we can make a baby as a joke. But we can still have such great consensual sex, so. Following that link to the latest AS post now…

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          I didn’t say sex wasn’t fun. And I didn’t say people didn’t have it to have fun. I said that wasn’t its GOAL. It’s a biological drive. And that’s why it exists, and why is evolved. If it was just “fun.” it would never have evolved in the first place. It isn’t backgammon, ok?

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          I agree with Lawrence; when I have sex, my goal is always to make babies. The fact that my partners and I both have uteruses does mean that we usually have to try more frequently and for longer than most people do, but its worth the sacrifice just knowing that one day we might be the first XX/XX couple to have a child on our own.
          No but really Lawrence, that was one of the worse arguments ever. If the goal of sex in society today were to make babies, rape laws should be irrelevant. Because as long as your rape resulted in a baby, who cares how it happened? You won at evolution. You need to stop intentionally misinterpreting people’s really simple points, like “the point of sex should be mutual enjoyment” in order to make tangential arguments that don’t even help your case. (Unless of course you guys actually don’t understand the concepts like “consent.” This is actually an ongoing mental conflict of mine. Are they trolls? Are they stupid? Do they suddenly realize that all those times they fucked girls who were passed out drunk, they were committing a crime and this is some kind of cognitive dissidence? I worry for you guys, I really do.)

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      What you don’t seem to understand is that, according to this law,

      “If your partner is groping you in return, or making pleased noises, or otherwise actively participating in the proceedings, that communicates ongoing consent.”

      does not mean they are consenting. It is just as easy for them to say that they felt forced or were scared to say no.

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    Definitely support the bill. I am somewhat frustrated that when Antioch College implemented its Sexual Offense Policy, very similar to this and the FIRST of it’s kind, 20 years ago, people did little more than laugh. It was such a joke that Saturday Night Live did a piece on it. How different would things be and for how many if people paid attention back then? Grateful that it is starting to happen now.

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    What really concerns me about some of the comments above and what some people are bring up way too often elsewhere on the internet and in the world is that even if you consider 2-8% of rapes being false (which is way higher than it actually is since this statistic doesn’t take into consideration things like that most people don’t report it or that some people later tell the police that they weren’t raped just to get out of the horrible situation of dealing with the police treating them like liars), why are the accused in 2-8% of cases so much more important than the accusers in 92-98% of cases and the people that will later be raped by some of the accused in the 92-98% of cases, because few of these cases even make it to court as it is? That just seems crazy to me, especially considering they aren’t complaining about those falsely accused of other crimes.

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      Because it’s never justifiable to send an innocent person to prison and ruin their lives. I’m all about preventing real, forcible rapes that were clearly undesired and prosecuting, fuck, even executing those real rapists. What I’m not all about, however, is fickle girls consenting to sex while buzzed, regretting it the next morning, and pulling the rape card to try and regain some dignity/sympathy.

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        Then that is a conversation about the legal system because innocent people go to prison for many different crimes, yet I have never seen this argument brought up for other crimes. Also, a girl telling her friends that she was raped instead of consenting because she thinks it will be less embarrassing is not the same as pressing charges.

        On top of that, telling someone that you have been raped isn’t really dignifying and a lot of people shame the girl instead of sympathizing with her – realistically she would likely have more dignity/sympathy talking about having sex that she regretted and if she wanted to lie about it she would most likely do so by saying that they never had sex. So many girls are told, by people that are friends and family, things like how they are such big sluts or they did something to deserve it when they share that they have been raped, and sometimes they don’t even believe her since a lot of people think that girls lie about being raped so often. And when it comes to reporting the crime and pressing charges? Many describe that experience as much worse than being raped because even with evidence the police believed that they were lying and just trying to get attention or ruin some guy’s life.

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      well we have to trust that young women won’t use this as a tool to get back at an ex-boyfriend, because after this law passes it’s never been easier to set someone up and frame them for rape. In fact you could literally have the time of your life, but since you’re not talking it to death, it’s “rape”

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    The claim that “false rape reports are extremely rare” is simply not true. Here (https://www.facebook.com/Helsinginpoliisilaitos/posts/669698486445022) is an announcement from the Helsinki Police Department, dated 22/7/2014, according which (I translate) “Out of the 309 sexual assaults reported this year, 225 have been so far finished in investigation, out of which almost two thirds have been cases which have been either completely false, have not involved a crime, or the claimant has withdrawn the accusation.” Two thirds. I would say that is quite a bit more than “extremely rare”. This may not be directly relevant to the situation in California, however, but neither is the document (http://www.webcitation.org/6ItPWbBjp) referred to in the article.

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    The subtext is that this bill is necessary for two people who don’t know each other. A lot of strangers have sex in college, and a few extra guidelines could be good.

    Obviously this bill will be utterly impossible to enforce, but if it spreads awareness and makes a few less date rapes happen, I think it’s a good thing. Although it saddens me that we have to treat college students (both men AND women) like infants in this day and age. Every statistic we have tells us that violent crime including sexual assault and rape has been dropping for 30 years. I hope we reach a point where people just treat each other with more respect because it’s the right thing to do.

    It is NEVER ok to put someone else in a state of fear or discomfort because you’re horny, and communication is very important. It’s just too bad a lot of the numbers have been blown so far out of the realm of reality. Most of my friends are women and they have never experienced rape culture, except on Tumblr.

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