Legislators considering “Yes Means Yes” college sexual assault bill

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STORRS- The term "no means no" has been the standard of how colleges have historically investigated sexual assault cases, but that could change in Connecticut.

The state legislature is considering what is being dubbed as the “Yes Means Yes” bill, which would set affirmative consent as the threshold for college sex assault cases. Essentially, it redefines what is considered consensual sex on universities and colleges in the state.

According to the bill, affirmative consent means "an active, informed, unambiguous and voluntary agreement by a person to engage in sexual activity with another person that is sustained throughout the sexual activity and may be revoked at any time by any person."

Here is a more detailed explanation of what the bill proposes:

It is the responsibility of each person to ensure that he or she has the affirmative consent of all persons to engage in the sexual activity.

  • The existence of a dating relationship or past sexual relationship between persons shall not constitute consent to engage in the sexual activity
  • It shall not be a valid excuse to an alleged lack of affirmative consent (no means no) that the accused believed that the victim consented to the sexual activity because:
    • The accused was intoxicated or reckless or failed to take reasonable steps to ascertain whether the victim affirmatively consented
    • If the accused knew or should have known that the victim was unable to consent because the victim was unconscious, asleep, unable to communicate due to a mental or physical condition, or incapacitated due to the influence of drugs, alcohol or medication and, as a result, was unable to understand the fact, nature or extent of the sexual activity.

The proposed legislation, which was passed by the legislature's Higher Education Committee on Tuesday in a 14-3 bipartisan vote, will now move on to the Senate for consideration.

The bill shifts the burden from the victim to the perpetrator. Currently, the victim must convince investigators that he or she said “no,” while this bill would put the onus on the accused to prove the victim said “yes.”

"We're going to help lead the way in changing our culture, so that the culture of the victim blaming will stop," said state Sen. Mae Flexer (D-Killingly).

Supporters of the affirmative consent bill--S.B. 636--gathered at the UConn campus Friday afternoon. The bill is so important to advocates because of the statistics: most sexual assaults go unreported, victim advocates say, but 1 in 5 women are sexually assaulted during their college years.

"Affirmative consent cuts the ambiguity and makes it something much more obvious to detect," said Megan Grant, a Uconn senior and and intern at the Connecticut Sexual Assault Crisis Center.

The goal, supporters say, is  to get more victims to come forward after an assault, and create a new mindset where the victim doesn't feel guilt.

"We'll stop asking young women why they wore short skirts? Instead asking the perpetrators of these crimes why they thought they can act in this manner? " said  Sen. Flexer.

Though the bill passed in the education committee, some lawmakers say the law's intent is unclear.

The confusion seemed evident in comments from state Rep. Douglas McCrory (D-Hartford), who asked during the hearing if hugging and kissing constitutes sexual activity, and if a smile and a wink constitutes consent.

"That is troubling to me, because I think this adds more ambiguity to the situation. A smiling and a wink is not a smile and a wink, we can't just go on a smile and a wink anymore," said McCrory said.

McCrory cited a hypothetical situation in which non-verbal consent for a sexual encounter is given, but later when the relationship ends one person makes an assault accusation in retaliation for the break up. What happens if the accuser then says no consent was given, McCrory asked.

Rep. Mike Bocchino (R-Greenwich) voted yes, but still expressed his reservations.

"I'm  really worried that one moment in time will worry someone's college career because they were wrongly accused," said Bocchino.

The move toward adopting the "affirmative consent" threshold as the standard in college sexual assault cases is part of a growing national response to what has been called an epidemic of sexual assault on college campuses.

UConn adopted the policy in 2002, but last year the university settled a federal lawsuit with students who say the university failed to respond appropriately to reports of sexual assault.

If the measure passes, Connecticut would become the second state in the nation to pass an affirmative consent policy. California passed such a law in 2014.