A bill to change the sexual consent threshold at colleges and universities across the state from “no means no” to “yes means yes” is one step closer to becoming law Tuesday after it cleared the Higher Education and Employment Committee.
The bill passed with bipartisan support, but there was a lack of understanding within the committee about what consent means.
State Sen. Mae Flexer, D-Killingly, said affirmative consent isn’t a definitive list of acceptable words or actions, but an issue that must be framed by a broader conversation about communication. She likened sex to the simple, everyday act of joining — or not joining — somebody for a cup of coffee. Consent can be conveyed not only through the words “yes” or “no,” but by nodding or backing away or giving any of a host of signals.
The bill was forwarded to the Senate by a 14-3 vote despite concerns about ambiguity raised by Republicans as well as Democrats. Ultimately, all the Democrats on the committee voted in favor of the bill.
The proposal, sponsored by Flexer and state Rep. Gregory Haddad, D-Storrs, is based on a statute that made California the first state in the nation to require affirmative consent last year.
The bill defines affirmative consent as “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.” It also specifies that a dating relationship or past sexual relationship does not constitute consent.
The bill does not, however, define sexual activity.
Committee co-chairman Dante Bartolomeo, D-Meriden, was concerned about propriety when pressed for specifics about the definition of “sexual activity” by state Rep. Juan Candelaria, D-New Haven.
“I guess I’m wondering if we’re going to do the PG version, the before-8-p.m. version,” Bartolomeo said.
Candelaria said a frank explanation was necessary to get a full understanding of the possible ramifications in college and university communities: “This is so critical, I think we have to look at the triple x version.”
But legal counsel from the Legislative Commissioner’s Office was not immediately able to find a definition anywhere in statute.
Flexer asked Candelaria to help the committee come up with appropriate wording if further research didn’t uncover a definition for sexual activity elsewhere in state law.
“If you’d be willing to work with us on that, I’m sure we could settle this before we get to the floor,” she said.
Candelaria agreed before going on to question the meaning of “affirmative consent” as well.
According to Flexer, it can be conveyed in various ways. “We all communicate differently. You can tell when somebody wants to engage in a certain kind of activity. You can tell when somebody wants to pull back. It can be given verbally, but it can also be given in non-verbal cues as well,” she said.
State Rep. Douglas McCrory, D-Hartford, was concerned about the subjective nature of non-verbal signals. He cited a hypothetical situation in which affirmative consent is given in form of a smile or a wink. But later, the relationship ends and 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.
“A smile and a wink is not a smile and a wink anymore,” he said. “I don’t know what affirmative consent is actually saying, what we’re saying here.”
Flexer said testimony from the University of Connecticut community showed that the shift in thinking — from consent in the negative to consent in the positive — actually helped the school conclude investigations more quickly and efficiently. When the accused and the accuser tell their stories based on an affirmative consent framework, Flexer said investigators are better able to “see when someone is perhaps bringing forward a false accusation.”
State Rep. Mike Bocchino, R-Greenwich, said he supported sending the bill to the floor in order to further the discussion, but would like to see the language altered before it becomes law.
“We have an obligation to make certain that this bill, this legislation that we will finally pass, is true and just and cannot be interpreted in any other way,” Bocchino said, voicing concern for those wrongfully accused while demonstrating less sensitivity toward the victims of sexual assault: “Because at the end of the day, there are no witnesses — at least if there are, it’s a really great party.”
The Connecticut Democratic Party called on Bocchino to apologize for the statement.
“Campus sexual assault is not a joke,” Connecticut Democratic Party spokeswoman Leigh Appleby said. “It affects both genders, but up to one in five female students are victims. It’s a serious problem, and I hope Rep. Bocchino will publicly apologize for his distasteful and offensive comment.”
Flexer said confusion from some on the committee about what affirmative consent means belies the fact that saying yes or no to sex should be no different than expressing one’s preference for anything else in life — including, but not limited to, coffee, tea, and frozen yogurt.
“They acted like sexual activity was conveyed differently than everything else in our human interaction,” Flexer said.
In addition to setting guidelines around the meaning of consent and the investigation of sexual assault and stalking cases, the bill also calls for mandatory awareness programming to convey the new affirmative consent standard and to educate campus communities about issues surrounding sexual violence. Required topics include incident reporting, prevention, and bystander intervention.