Here at The Daily Free Press and, in many cases, at Boston University in general, it seems as though we are constantly sitting down to talk about sexual assault. We’ve done so with regard to letters to the editor, sexual assault cases in Greek life and, most recently, BU’s sexual misconduct survey. But we wouldn’t be talking about it if the issue weren’t so prominent in the media and in our own lives. And so, here we are again.
California became the first state to approve “Yes Means Yes” legislation Oct. 1, which requires that high schools teach affirmative consent as a part of curriculum in health education classes throughout the state. This includes “explaining that someone who is drunk or asleep cannot grant consent,” the Associated Press and The New York Times reported. California was also the first state to require “colleges to use affirmative consent as the standard in campus disciplinary decisions, defining how and when people agree to have sex” in an effort to improve the way rape and assault are treated on campus. However, while affirmative consent must be taught in schools, there is no legislative requirement for affirmative consent to be proven in court cases regarding sexual assault.
The New York Times published a piece Wednesday profiling a San Francisco high school teacher and her class who were tasked with coming up with ways to ask for consent from their sexual partners. Most of them felt awkward about the exercise, having never had sexual experiences before. The students riddled the teacher with questions, asking if and when consent needs to be given. She told them that no matter the situation, when the next step is taken in a sexual relationship, a “yes” must be given. Plain and simple. But the Times called the policy “tricky,” in that the students are taught affirmative consent but there is really no way to implement proof of consent into court cases regarding the issue.
The fact is that many people in California, and in all other states in the United States, may not even understand what affirmative consent is. But teaching inexperienced students isn’t a bad way for people to start learning. Even as the students brainstormed potentially awkward ways to ask for and give consent, the act of asking and giving in the heat of the moment can’t really be rehearsed. All in all, the teaching may be more progressive than the students learning it, especially because those students and people like those students still feel subjected to so many unanswered questions. Can two drunk people give consent to each other? Or, a frequently asked question according to the Times, what if at the time it seems okay, but then in the morning one party decides they didn’t want it?
That being said, the education campaign is one that must be executed fully. In five years, are we going to require people to have handwritten statements of consent? Of course not. It seems unlikely that we will ever find a way to prove affirmative consent between two people who had a sexual relationship. The your-word-over-mine nature of these encounters is too arbitrary to ignore, and requiring an implementation of proof of affirmative consent would be near impossible. But if we teach that consent cannot be given when someone is under the influence, we can start to tell a new generation that consent cannot possibly be given unless both parties are in the right mind and are able to verbally tell each other that the next steps being taken sexually are okay.
Therefore, education is the most valuable tool here. Some may argue that there isn’t a point to California’s “Yes Means Yes” legislation, but what’s the alternative? Although it seems near impossible to prove that there was affirmative consent in a sexual encounter, education is the start to making kids and teens aware of what affirmative consent actually is. Perhaps if we are taught from a young age to be respectful of each others’ bodies, then the need for proof of affirmative consent won’t be necessary — in other words, perhaps there won’t be so many court cases in which affirmative consent must be proven.
But according to a Thursday article from NPR, some men believe they aren’t being given the chance to even address affirmative consent once they are accused. Because they are required to prove consent was given — which, as we have said, is nearly impossible — they feel guilty until proven innocent. And there is seemingly no way, to them at least, to prove innocence. “Once you are accused, you’re guilty,” a BU student told NPR on Thursday.
Male students are claiming that a bias against them has resulted in unfair trials in which the accused are not able to submit potential evidence in sexual assault cases. One student at the University of California, San Diego, was accused of sexually assaulting a friend, and in his hearing at the school he attempted to submit text messages as evidence that would have proven that the woman had given consent to the sexual relationship. The submission of the text messages was denied, and the student lost his hearing because he couldn’t prove consent. Later, Superior Court Judge Joel Pressman said, “the hearing against petitioner was unfair,” NPR reported.
It is likely true that some of men who are accused of sexual assault aren’t guilty. But this arguably wouldn’t be an issue if students were taught to cover all of their bases, so to speak. It isn’t difficult to be a decent person. It isn’t difficult to realize that if a person is drunk, you shouldn’t have sex with them, because they aren’t in the right state of mind to give you consent. Herein we tie back to the question of, “what if one person says it’s okay, but decides in the morning they didn’t want it?” It’s simple, really: no matter how many times a person may say something is okay, no one is able to give consent when they are drunk. Period. And if this “Yes Means Yes” legislation begins teaching this fact in the tenth grade when it really starts to matter, then the government is doing its job. We need to learn to play it safe. We need to teach that if you shouldn’t drive a car when you’re drunk, as it could change your life in ways you never imagined, the same goes for sexual conduct.
A few anecdotal stories from wrongly accused male students aren’t going to make us change our minds about these issues. According to NPR, 50 complaints from accused students have been filed this year. But the anecdotes that aren’t supported by statistics don’t help these male students’ cause — rather, they again perpetuate a feeling of victim blaming. Men have to worry about being accused of rape, but women have to worry about being raped. There is an obvious fear here that men who are accused will always have a tainted reputation, whether they are guilty or completely innocent. There’s such an intense fear of having your life ruined if you are wrongly accused, and we understand that fear is real.
And that is why it is so important that schools and colleges give everyone a chance for fair trial. All evidence must be submitted and everyone must have a chance to say his or her piece — it’s only fair in the grand scheme of democracy in this country. Because proof of affirmative consent can’t possibly be required, therefore, it’s necessary that all those accused be able to present their cases. We would rather see someone falsely accused than see someone avoid coming forward for fear of retribution for wrongly accusing someone.
There may be a bias against the accused in some situations, but the bias against the accuser is often much more prominent and real. Even here at BU, students who were convicted of sexual assault in their hearings are pardoned and allowed back on campus with even one appeal. We can’t say that there is a clear bias against the accused when even those who are proven guilty are so easily allowed to roam free, with no expulsion in sight.
Our phones buzzed with emails and texts Sunday morning with a BU Alert message informing students about a reported sexual assault at 33 Harry Agganis Way. Amazingly, it took us by surprise — many of us hadn’t ever seen an emergency text from BU alerting us about sexual assault on campus. Most of them pertain to fires or police activity in certain areas or alleged off campus assaults. But none have ever so blatantly described a threat like this.
Perhaps this shows that we are headed in the right direction in terms of schools’ reactions to sexual assault. There is no bias being shown in either direction here — a woman reported her assault and the school is looking to find the alleged perpetrator. Only time will tell how the school will effectively handle the situation, but the timeliness of emergency alert seems to be a positive sign.
All roads lead back to education here. If “Yes Means Yes” influences students to act responsibly and colleges and universities to maintain fairness in all sexual assault cases, then by all means, let’s start implementing this legislation into every state education system.