Bill would shift consent standard in campus sex assault cases
When adjudicating complaints of sexual assault among college students, determining whether there was consent is crucial, and two state legislators are proposing a bill they say would shift and clarify the standard for doing that.
The bill, being proposed by state Rep. Gregg Haddad, and Sen. Mae Flexer, would move schools away from the “no-means-no” approach and toward an affirmative-consent standard.
“A lot of consent language has been written in the past from a ‘no-means-no’ standard,” said Haddad, D-Mansfield. “The first question law enforcement will ask is, ‘What did you do to say no?’ Instead the conversation should really be a question that is focused on the initiator of the situation, ‘What did you do to obtain consent?’”
The bill would require all colleges in Connecticut to adopt an affirmative-consent standard as part of their sexual assault policy. Many schools, including the University of Connecticut, and Yale University, already have done so.
The bill is designed to provide a clear standard for university disciplinary boards to apply in determining when sexual activity is consensual. It borrows elements from a law in California, the first state to adopt affirmative consent as a standard for state colleges.
Nancy Naples, a professor and director of Women, Gender and Sexuality Studies and Sociology at UConn, sees the proposed bill as the beginning of the end for the “no-means-no” formulation of the consent debate.
“What is ‘no?’ Is it a statement? Am I pushing you away? ‘Yes’ is expressing a desire, a very affirmative way of doing so,” Naples said in an interview. “It is a much more clear way of negotiating sexuality, and it puts women in a more balanced position.”
Confirming consent in some situations, such as when one or more of the individuals is intoxicated, will continue to cause difficulties in investigations, Naples said, but that should not prevent adoption of the bill.
“There’s enough publicity about the problems campuses are having about sexual assault that people would be hard-pressed to find a really substantive argument against a policy like this,” Naples said.
UConn faced a highly publicized Title IX lawsuit last year that resulted in a $1.3 million settlement with five women who claimed the school responded inadequately and was unsupportive when they complained of sexual assault.
“Those cases demonstrated that not all the processes at the university were working the way they should have…The Title IX lawsuit brought the conversation about sexual assault to a whole new level.” said Flexer, D-Killingly.
UConn, which adopted an affirmative consent policy in the early 2000’s, has since worked on expanding sexual-assault support services including:
- Re-establishing the office of dean of students and creating two positions designed to assist students during the complaint and investigation processes.
- Creating of a Special Victims Unit for the University of Connecticut Police Department.
- Establishing a Bystander Intervention Task Force composed of students and faculty who would increase awareness of sexual violence and encourage individuals to identify and intervene in situations where sexual consent has not been given
According to Alexandra Brodsky, a law student at Yale and contributor to “KnowYourIX.org,” Connecticut would be one of the first states, alongside New York and New Hampshire, to follow California’s lead in implementing the affirmative consent standard for all schools.
She said a university’s acceptance of a policy helps to clarify the often awkward and invasive investigations of sexual assault complaints.
“Without a clear standard, we see a lot of university decision-makers relying on old myths…It’s the question of what’s personal, and what’s relevant,” Brodsky said. “We’re told that flirting means ‘yes,’ and a low-cut shirt means ‘yes.’ This is a way of pushing back on those old, anachronistic, victim-blaming inquiries.”
Brodsky said there still may be cases where “yes” does not always mean “yes,” such those involving abusive relationships or victims who are coerced physically or psychologically into saying yes.
“It is not the silver bullet of gender relations,” Brodsky said.
Haddad, who’s constituency includes students at the University of Connecticut and students who live in Mansfield, said that it has been student leaders who have made these policies a priority for legislators.
“I think that young activists on college campuses have gotten increasingly effective at both identifying the problem for policy makers and identifying solutions for policy makers,” Haddad said.
Rep. Roberta Willis, the House chairwoman of the legislature’s Higher Education Committee, said this bill will foster an important discussion about what the definition of consent should be.
“I think we need to have that conversation,” she said.
The Higher Education Committee will have a public hearing on the proposal this winter.
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