The disconnect underscores "the serious difficulty that passage of SB 967 would present to campus administrators across California," he said. "Under this legislation, students who are or may become sexually active must now worry about documenting that they obtained consent, because proving affirmative consent is the only way to defend oneself before a campus tribunal."
Rewriting the rules of consent
It's no laughing matter to survivors, feminists and prevention specialists, who have long pushed for schools to enforce some form of affirmative consent policy, not only as the moral code governing student conduct, but the standard of proof used in disciplinary proceedings.
Now it's starting to gain traction on college campuses amid pressure from advocacy groups and the federal government to do more to prevent sexual violence.
Schools nationwide are in the process of rewriting or have already rewritten their sexual assault policies, procedures and prevention education programs to meet standards in the Campus Sexual Violence Elimination Act, known as the Campus SaVE Act. That took effect in 2013 as part of the reauthorization of the Violence Against Women Act, said Tracey Vitchers with Students Active for Ending Rape, which assists student-led campaigns to reform college sexual assault policies.
The White House further signaled its support for the issue this year through the formation of the Task Force to Protect Students From Sexual Assault. Its goal is to help schools improve policies and protocol for preventing and dealing with sexual misconduct so they comply with the Campus SaVE Act.
One of the task force's recommendations for revising sexual misconduct policies included defining consent as a "voluntary agreement to engage in sexual activity." Past consent should not imply consent, nor should silence or the absence of resistance, the guidelines recommend.
To reach compliance with the Violence Against Women Act, the California State University and University of California systems in February adopted standards similar to those in SB 967, including affirmative consent, spokeswoman Dianne Klein said.
"We've been working on these issues for quite a while. Is it perfect? No. But we are confident that we are doing everything we can and will continue to do so."
Berkeley also was revising its orientation program before the White House task force recommendations, based on student feedback and guidance from the federal government, spokeswoman Janet Gilmore said. In addition to Bear Pact, students are required to take online awareness-building programs on alcohol use and sexual harassment.
But is it enough? The sexual harassment component of Bear Pact evolved from existing consent education workshops offered at Berkeley since 2011 called "EmpowerU." The smaller, in-person workshops covered affirmative consent by walking through various scenarios, followed by group discussions.
While making Bear Pact mandatory and emphasizing affirmative consent are positive steps, some worry that expanding the presentation into a large lecture format reduces its effectiveness. For Bear Pact, the 90-minute EmpowerU workshop was compressed into a 45-minute lecture with no time for discussion.
Berkeley student and Bear Pact speaker Meghan Warner would like to see consent education continue beyond orientation and sexual harassment workshops and into classrooms and academic curricula.
"We still have a long way to go," said Warner, who works in sexual violence prevention through a number of roles with the Associated Students of the University of California and the Greek System.
"I think it's a great step in the right direction, but I don't think it's sufficient to educate someone for the rest of their life."
Creating positive models of consent
Typical lessons about consent focus on what it does not look like. Most students learn at some point in their postsecondary careers that by law, consent cannot be given under the influence of drugs or alcohol or if someone is asleep or unconscious. In other words, sex under the influence can be considered nonconsensual, which is the definition of rape.
Through presentations and workshops, social media campaigns and fliers posted on campus, schools also are trying to impress upon students that consent should be "enthusiastic," "voluntary" and "unambiguous." It can even be "sexy."
But affirmative consent rules won't stop someone intent on committing sexual assault. Sexual violence is still a problem even at schools that promote affirmative consent, including Berkeley. Berkeley is one of 76 schools under investigation by the Department of Education's Office of Civil Rights for violations of Title IX, the federal law that grants students access to education free of gender-based discrimination and harassment.
Enforcing an affirmative consent standard alone in schools will not fix the system, said Berkeley senior Sofie Karasek, one of 31 students who filed a Title IX complaint against the school in February. It takes a multipronged approach: trained counselors to support survivors, investigators to thoroughly examine cases, and a timely hearing process -- all required under federal law and included in SB 967.
The affirmative consent clause of SB 967 generates headlines, but supporters of the bill champion its comprehensive approach, which mirrors Title IX requirements. SB 967 also requires schools to implement comprehensive prevention programs and survivor-centered sexual assault response policies and protocols. It calls on schools to form partnerships with community organizations to assist survivors.
The affirmative consent standard helps by shifting the burden in disciplinary hearings from the complainant, who had to prove assault occurred, to the accused, who must show that he or she sought consent, Karasek said.
"There's this underlying assumption, unlike in any other crime, that survivors are lying or overexaggerating," Karasek said. "Having an affirmative consent standard changes the dynamic because we're not automatically assuming that if someone didn't say no, it means yes."
The flipped dynamic is what concerns critics of SB 967. Under an affirmative consent standard, sexual activity is sexual assault unless the accused can prove that the accusing party consciously and voluntarily agreed to engage in sexual activity. Moreover, the accused student must prove that the consent was ongoing, said Cohn, with the Foundation for Individual Rights in Education.
"When 'affirmative consent' becomes law, there will be no practical, fair, or consistent way for colleges to implement these newly mandated prerequisites for sexual activity," Cohn said.