Hawaii lawmakers are considering redefining what constitutes rape on University of Hawaii campuses by requiring UH to adopt a so-called affirmative consent standard for investigating sexual assault complaints.
The bill would effectively shift the sexual consent standard from "no means no" to "yes means yes" at UH campuses. The House Higher Education Committee on Tuesday unanimously advanced House Bill 451, which defines consent as "affirmative, conscious, and voluntary agreement to engage in sexual activity." It would cover incidents involving students, faculty or staff.
Under the bill, modeled after California’s affirmative consent law, UH would be required to adopt policies for investigating reports of sexual assault, domestic violence, dating violence and stalking in order to receive state funds for student financial assistance.
Those policies would have to include an affirmative consent standard that specifies:
» Lack of protest, lack of resistance or silence on the part of any party does not constitute consent.
» Consent must be ongoing throughout the sexual activity and can be revoked at any time.
» The existence of a dating relationship or past sexual relations between persons involved in sexual activity shall not by itself be assumed to be an indicator of consent.
» A complainant is unable to consent if he or she is unconscious, asleep, incapacitated due to alcohol or drugs, or unable to communicate due to a mental or physical condition.
"This is really an evolution from the policies of the ’80s of ‘no means no,’ and a move forward in terms of defining consensual relationships and defining sex on campus," Sonja Bigalke-Bannan, executive director of the Hawaii Chapter of the National Association of Social Workers, testified Tuesday in support of the bill.
UH-Manoa’s Department of Public Safety reported no incidents of "non-forcible" sex offenses on campus between 2010 and 2012, the last year data were available. But there were a dozen reports of forcible sex offenses on campus in 2010 and again in 2011, and 11 reports in 2012. Nine of the 11 forcible sex offenses in 2012 reportedly occurred in dorms or other residential facilities.
The flagship Manoa campus is one of 55 universities and colleges under investigation by the U.S. Department of Education’s Office for Civil Rights over how it responds to complaints of sexual harassment and sexual assault.
"In our university, sex assault is underreported, mishandled and too often swept under the rug in order for the system to save face," Ann Freed, co-chairwoman of the Hawaii Women’s Coalition, said in supporting testimony. "If this bill becomes law, we can hope for a healthier campus climate that would result in more victims coming forward if they know their personal life and credibility will not be called into question when determining whether consent occurred."
Since California’s affirmative consent law was enacted in September, nine other states have proposed similar legislation, and more than 800 colleges and universities now use some type of affirmative consent definition in their sex assault policies, according to the National Center for Higher Education Risk Management.
"Sad to say that at the college level we still have to explain that ‘yes’ means ‘yes,’" said Amy Monk, a commissioner on the Hawaii State Commission on the Status of Women, which supports the bill. "What it provides is clear guidance for students on what is permissible in terms of sexual activity and make sure that there is mutual consent."
Jan Gouveia, UH system vice president for administration, testified that the measure would be unnecessary and duplicative because UH recently adopted and will be implementing an updated sexual harassment policy.
She said the new policy is intended to address requirements of the federal Violence Against Women Act and specifically addresses sexual harassment, sexual assault, domestic violence, dating violence and stalking.
Gouveia added that UH believes "policies of this nature are more appropriately developed through the internal process and procedures of the university."
More than a dozen organizations and individuals testified in support of the bill, including the Hawaii State Coalition Against Domestic Violence; The Sex Abuse Treatment Center, a program of Kapiolani Medical Center; and Planned Parenthood of Hawaii.
A companion bill, Senate Bill 387, has been approved by the Senate Higher Education and Judiciary committees.
