CALIFORNIA has become the first American state to require students on state-funded campuses to have clear, active consent before all sexual activity.
Governor Jerry Brown signed the “yes means yes” bill, which advocates have said will change the perception of rape.
The legislation stipulates that active voluntary agreement, rather than lack of resistance, defines consent.
In January, President Obama launched an initiative to combat sexual assault, particularly on college campuses. “Yes means yes” is the first law in a US state to make the language of affirmative consent a central principle of school sexual assault policies.
The rule defines consent as “an affirmative, conscious and voluntary agreement to engage in sexual activity”. Lawmakers have said that consent can be non-verbal, if it is unambiguous.
The aim is to improve the way that campuses deal with accusations of sexual assault, and to challenge the notion that victims need to have resisted in order to have valid complaints.
The legislation also stipulates that silence or a lack of resistance do not constitute consent, and that someone who is drunk, drugged, unconscious or asleep cannot grant consent.
Sofie Karasek, an activist from the University of California-Berkeley, said she believed the bill would change the cultural perception of rape.
“There’s this pervasive idea that if it’s not super violent then it doesn’t really count,” she said.
Brett Sokolow, a higher education risk management consultant, who backed the bill, used a traffic metaphor in commenting on the aims of the policy.
He said: “You go forward on a green light. You stop on a red light. But most people tend to run the yellows … Affirmative consent is telling you to slow down at the yellow light.
“You’ve been able to fondle, pet, kiss; if you assume those lead you to the next behaviour without permission, then you are running a yellow light. You are putting your needs to get through the intersection above the needs for others’ safety.”
He said the policy wouldn’t stop predators, but would encourage some male students to think about their actions.
The Department of Education has named dozens of institutions as being under investigation for mishandling sexual assault cases. The US estimates one in five women is sexually assaulted while at university.
However, critics say that the new law dangerously expands the definition of assault.
Matthew Kaiser, a lawyer in Washington who represents college students accused of sexual assault, said the policy’s broad language could ensnare young men who acted in good faith.
Mr Kaiser said when people are having sex, “they don’t stop and say, ‘Can I do this now?’ It just sort of happens”.
He added: “When you look at the language of the bill, it’s not clear what counts as sexual assault and what doesn’t.”
But in an article in the New York Times earlier this month, renowned feminist Gloria Steinem and sociology professor Michael Kimmel wrote: “Since when is hearing ‘yes’ a turnoff? Answering ‘yes’ to, ‘Can I touch you there?’ ‘Would you like me to…?’ seems a confirmation of desire.”