3 Ways California Wants to Make It Tougher to Get Away With Campus Rape

At some colleges, ‘no means no’ isn’t good enough.

(Photo: Getty Images)

Aug 13, 2014· 1 MIN READ
Nicole Pasulka is a writer and reporter who lives in New York City. She has written for Mother Jones, BuzzFeed, The Believer, and the New York Observer.

A controversial bill making its way through the California legislature would require any state university that receives state funding for financial aid to have a sexual assault policy that includes an “affirmative consent standard.”

The idea is that rather than asking, “How do you know your partner doesn’t want to have sex?” we should be asking, “How do you know your partner wants to have sex?”

If the answer to that question isn’t “Because they said so,” the sex might not be consensual.

Sexual assault, harassment, and breach of a victim’s confidentiality are already violations of most school policies and state laws; however, defining consensual sex as more than just an absence of a clear struggle or the word “no” increases the rights of victims and recognizes the complexity of sexual assault on campus.

Critics have complained that requiring those accused of sexual assault to prove they received affirmative consent will leave schools vulnerable to lawsuits or put too many restrictions on college sex.

But when one out of every five college-age women has been sexually assaulted, it’s possible a “no means no” standard for consent isn’t enough.

If a law like this one had been in place, the following stories of campus sexual assault reporting might have gone down differently:

The Victim Is Drunk

In December 2012, Erin Cavalier claimed that a fellow Catholic University of America student raped her while she was blacked out. Though other students saw her staggering around a party, and her blood alcohol was above the legal limit, a hearing board at the school found that “no force was involved” and Cavalier was “not incapable of giving consent.” The accused student was cleared of all charges.

This might not have happened under the proposed California law. It requires affirmative consent even from people incapacitated by drugs or alcohol.

The Victim and the Accused Are Dating

In February 2013, Joanna Espinosa said her boyfriend forced her to have sex with him for most of their three-year relationship. Both were students at University of Texas–Pan American, and Espinosa went to university administrators after the relationship ended to report the abuse. She said administrators suggested she “was a spiteful ex-girlfriend.” The school decided that her complaint was “unsubstantiated.”

A law like the one under consideration in California could have helped Espinosa. The law recognizes the real problem of intimate partner rape and specifies that just because people are dating or have had a past sexual relationship doesn’t mean sex is automatically consensual.

The Victim’s Name Is Made Public

Anna said she was violently sexually assaulted by several athletes at Hobart and William Smith Colleges. During the investigation, the university sent dozens of students letters that identified Anna by name.

“I’m surprised they didn’t attach my picture,” she told The New York Times.

The California law would require that schools have statements on how to provide “protections for the privacy of individuals involved, including confidentiality.”