"It is impracticable for the government to require students to obtain affirmative consent at each stage of a physical encounter, especially if students must later prove they successfully did so in a campus hearing. In reality, requiring students to obtain affirmative consent will render a great deal of legal sexual activity 'sexual assault.'"
Consent by whose standard?
To some young men, however, mutual consent is already a familiar concept. Berkeley freshman Alexander Vu attended the same Bear Pact session as Yoon-Hendricks. To him, it sounded like a lot of the same concepts from high school health class.
"It was a good way to reinforce the idea of mutual consent, but it wasn't anything I hadn't heard before," the 18-year-old said.
Is it something he would practice? "Yes, absolutely," he said. "It seems like a good foundation for a healthy, mutually respectful relationship."
Berkeley freshman Joshua Deng, who also attended the Bear Pact presentation, said he supports the idea of affirmative consent both as a school policy and a rule of thumb to cover him from allegations of wrongdoing.
"I don't want to be forcing someone into a position they're going to be uncomfortable with," he said. "People might say it's impractical or ridiculous in reality, but the possible end of doing something that's not something someone wants is a frightening possibility."
He stopped short, though, of fully backing affirmative consent as state law.
"I'd have to do more research," he said. "Making a law for anything has huge implications and there's got to be a lot of thinking that goes into that."
In evaluating sexual misconduct claims, SB 967 calls for schools to apply a "preponderance of evidence" standard, similar to Title IX. It's a lower standard of proof, used in civil cases, instead of the "beyond a reasonable doubt" bar used in criminal trials.
That's another point of contention for people who say SB 967 undermines due process rights by subjecting the accused to a lower culpability threshold without the protections offered by criminal and civil courts -- such as the mandatory exchange of evidence known as discovery and restrictions on hearsay and prior bad act evidence.
"Those accused in campus tribunals are generally denied these protections -- but nevertheless are subject to life-changing sanctions, based on little more than a hunch by campus court participants that one person's story is slightly more credible," Cohn said.
Words to love by
Like Berkeley, Columbia University in New York has been the subject of negative publicity in the past year over its handling of sexual misconduct. Just this week, a Columbia student made headlines for vowing to carry around a mattress on which she claims she was raped, until her alleged attacker is disciplined.
Columbia rolled out a new mandatory, two-part workshop for freshmen this semester on sexual violence and gender-based misconduct as part of its New Student Orientation Program.
"Since the beginning of this year the university has been moving on multiple fronts both to respond to student concerns and reflect the changing guidance from the U.S. Department of Education on this issue," spokeswoman Victoria Benitez said.
Student activists asked administrators to revise Columbia's "Consent is Sexy" workshop last year to make it mandatory and more serious in tone. Attendees told the Columbia Spectator that the presentation focused on defining consent and walking through different scenarios of sexual harassment.
Consent was defined as "an enthusiastic yes that was gained without the use of intimidation or coercion," one attendee told the campus newspaper. The information was thorough and explicit, attendees said, even if it was a little boring and repetitive at times.
Orientation for many students began before they arrived at Columbia, Benitez said. Through newsletters and a video, the school introduced students to its "Step Up" and "Make a Difference" campaigns on sexual harassment prevention and bystander intervention.
One handout on "gauging consent" offers examples of signs that you should stop, such as "you or your partner are too intoxicated to gauge or give consent" or "you hope your partner will say nothing and go with the flow."
Signs you should pause and talk might be that "you feel like you are getting mixed signals" or "you are not sure what the other person wants."
Another handout provides students with suggested ways to ask for consent: "Does this feel good?" "Would you like me to...?" "Do you want to keep going?"
Framing consent this way serves as a reminder that it can also apply to committed relationships. After all, the vast majority of people who are sexually assaulted know their attacker, and often have a relationship with them, said Laura Palumbo with the National Sexual Violence Resource Center.
Even couples in healthy relationships can benefit from consent, she said.
"If you're in a healthy sexual relationship, wouldn't you want your partner to be as interested in what you're doing as you are? Wouldn't you want the move you're making to be satisfying to your partner?" she said.