Editorial: California affirmative consent law not realistic, but remains necessary

“Yes means yes” has been the public face of California’s affirmative consent legislation, finding its way onto posters and in freshman orientations in colleges throughout the state.

The law, passed in 2014, mandates that affirmative consent – which can be revoked at any time – must be ongoing throughout a sexual activity for it to be legal. This is a departure from past policies, which did not define consent, but the absence of it – meaning consent was assumed if no one protested.

While the current definition provides a clear standard for legal action that acknowledges silence is not consent, it is not without its shortcomings. Recent research findings on how college students perceive and give consent seems to show that affirmative consent is not a reality in many college students’ sexual lives.

Despite these findings, however, California must uphold its affirmative consent law as a legal standard for evaluating sexual assault cases effectively.

Jason Laker, a San Jose State University professor who researched consent in college students’ sexual activities in order to formulate better policies to prevent sexual coercion and violence, criticized the affirmative consent law for excluding students who are introverted and less likely to ask for or voice consent when engaging in sexual activity. He also added that in his and his research partner’s interviews with students, they found that people give nonverbal social cues to indicate their consent, and that in some instances, students verbally give consent, but only after coercion.

However true Laker’s observations are, affirmative consent in California has helped clear the haziness that surrounds sexual assault cases. By mandating the “yes means yes” policy, it is much easier for California law enforcement officials and judges to evaluate sexual assault cases and make less ambiguous, yet more ethical rulings.

Certainly, the reality of sexual consent on college campuses must be taken into consideration when evaluating the effectiveness of the affirmative consent law. While research points to unambiguous consent as being an unrealistic concept in the lives of college students, legislation and the court rulings can do very little to protect individuals constantly without such a standard of comparison. As such, it is naive to do away with the policy altogether; rather, it should be improved upon in the face of such findings.

Ultimately, while the reality of sexual consent in college students’ sexual lives may not be wholly encompassed by the California affirmative consent law, it is important to remember that the law has undoubtedly created a standard for evaluating sexual assault cases – an essential asset in effective law enforcement and jurisdiction.