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Calif. law would require defining consensual sex

Colleges wrestle with issue of what constitutes rape

New students at San Diego State University watched a video on sexual consent during an orientation event this month.

Gregory Bull/Associated Press

New students at San Diego State University watched a video on sexual consent during an orientation event this month.

SAN DIEGO — College students have heard a similar refrain for years in campaigns to stop sexual assault: No means no.

Now, as universities around the country are facing pressure over the handling of rape allegations and adopt policies to define consensual sex, California is poised to take it a step further. Lawmakers are considering what would be the first-in-the-nation measure requiring all colleges in the state that receive public funds to set a standard for when ‘‘yes means yes.’’

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Defining consensual sex is a growing trend among universities in an effort to do more to protect victims. From the University of California system to Yale University, schools have been adopting standards to distinguish when consent was given for a sexual activity and when it was not.

Legislation passed by California’s Senate in May and coming before the Assembly this month would require all schools that receive public funds for student financial assistance to set an ‘‘affirmative consent standard’’ that could be used in investigating and adjudicating assault allegations. That would be defined as ‘‘an affirmative, unambiguous, and conscious decision’’ by each party to engage in sexual activity.

Silence or lack of resistance does not constitute consent. The legislation says it is also not consent if the person is drunk, drugged, unconscious, or asleep.

Lawmakers say consent can be nonverbal, and universities with similar policies have outlined examples as maybe a nod of the head or moving in closer to the person.

Several state legislatures, including Maryland, Texas, and Connecticut, introduced bills in the past year to push colleges to do more after a White House task force reported that 1 in 5 female college students is a victim of sexual assault. The Education Department also took the unprecedented step of releasing the names of schools facing federal investigation for the way they handle sexual abuse allegations.

But no state legislation has gone as far as California’s bill in requiring a consent standard.

Critics say the state is overstepping its bounds. The Los Angeles Times in an editorial after the bill passed the state Senate, 27-4, wrote that it raises questions as to whether it is reasonable or enforceable. The legislation is based on the White House task force’s recommendations.

‘‘It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms,’’ the newspaper said.

Some fear that navigating the murky waters of consent spells trouble for universities.

‘‘Frequently these cases involve two individuals, both of whom maybe were under the influence of alcohol or drugs, and it can be very tricky to ascertain whether consent was obtained,’’ said Ada Meloy, general counsel of the American Council on Education, which represents college presidents.

She said schools need to guarantee a safe environment for students, while law enforcement is best suited for handling more serious sexual assault cases.

John F. Banzhaf III, a George Washington University’s Law School professor, believes having university disciplinary panels interpret vague cues and body language will open the door for more lawsuits.

The legal definition of rape in most states means the perpetrator used force or the threat of force against the victim, but the California legislation could set the stage in which both parties could accuse each other of sexual assault, he said.

‘‘This bill would very, very radically change the definition of rape,’’ he said.

Meghan Warner, a 20-year-old University of California at Berkeley student, said that’s a good thing. She said she was sexually assaulted during her freshman year by two men at a fraternity but did not report it because she believed ‘‘that unless it was a stranger at night with a weapon who attacked you when you were walking home, that it wasn’t rape. It’s just a crappy thing that happened.’’ She now runs campus workshops to teach students what constitutes consent.

‘‘Most students don’t know what consent is,’’ she said. ‘‘I’ve asked at the workshops how many people think if a girl is blacked out drunk that it’s OK to have sex with her. The amount of people who raised their hands was just startling.’’

Defining consent may be easy to do on paper, said Laura Nguyen, a 21-year-old San Diego State University senior, but ‘‘we’re talking about college students out at night and the reality is there’s not just ‘yes’ or ‘no.’ There is a lot of in between. I really think it depends on the situation.’’

The legislation initially stated that ‘‘if there is confusion as to whether a person has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion can be clearly resolved.’’

After some interpreted that as asking people to stop after each kiss to get a verbal agreement before going to the next level, the bill was amended to say consent must be ‘‘ongoing’’ and ‘‘can be revoked at any time.’’

‘‘California needs to provide our students with education, resources, consistent policies and justice so that the system is not stacked against survivors,’’ state Senator Kevin de Leon, a Los Angeles Democrat, said in promoting the bill.

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