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‘How would you feel about me fondling your buttocks?’ ‘I’d be delighted.’

There is a bill currently making its way through the California Assembly in America which aims to tackle issues of date rape and unwanted sexual contact among young people. Already approved by the state senate, the bill proposes that in order to receive state funds for student financial assistance, the governing boards of universities and colleges must adopt policies which remove the possibility of sexual misunderstanding.

Taking action to reduce sexual harassment and assault is unquestionably a good thing, and there is lots about this bill which – whilst it shouldn’t need to be spelled out – is sensible and cautionary. Don’t have sex with someone when they’re drunk, incapacitated or asleep; don’t have sex with someone when you’re too drunk or incapacitated to know if the other person is consenting; don’t have sex with someone unable to communicate due to a mental or physical condition… all good stuff.

But there’s more. The bill spells out the meaning of consent, and states that it must be ‘informed, freely given, and voluntary,’ (no argument there). ‘Lack of protest or resistance does not mean consent…’ (agreed) ‘…nor does silence mean consent.’ This is where it starts to fall apart. It’s not enough to nod one’s head or smile enthusiastically to signify one’s consent: it has to be verbalised. Are appreciative moaning noises sufficient, one wonders, or must it be spelled out?

The bill doesn’t just refer to penetrative contact: it covers all sexual activity, at any stage of proceedings. ‘Consent must be ongoing throughout a sexual encounter.’ It is hard to imagine anything less romantic or exciting than the way this would play out in the bedroom:

‘May I kiss you?’

‘Yes, you may.’

‘Is it okay if I put my hand on your left breast?’

‘By all means, do.’

‘How would you feel about me fondling your buttocks?’

‘I’d be delighted.’

And so on…

We should never belittle the trauma caused by unwanted sexual contact or harassment, and it is laudable that California Assembly is considering passing a bill to address such issues. There are currently 55 American colleges and universities under investigation for mishandling sexual violence and harassment complaints from students: a policy which supports students’ right to say ‘no’, and which empowers college staff to deal with complaints thoroughly and effectively is a great move. But is this the right way to tackle it?

Consent is not a grey area – it’s a yes, or it’s a no – but it isn’t realistic to expect anyone to verbalise either the proposition for each individual sex act, or indeed the consent for it. There are many more ways to communicate than by verbalising one’s enthusiasm, and if students lack the emotional intelligence to read such signals, then perhaps that is what they should be taught.

Senate Bill 967 has an important – and sadly necessary – message at its heart, but the execution is all wrong.

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Clare Mackintosh

Written by Clare Mackintosh

Clare Mackintosh is a freelance feature-writer, columnist and crime novelist, and a former Police Inspector. Follow her on Twitter @claremackint0sh or read her blog at www.claremackintosh.com/blog

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