A Lincoln senator wants to flip the script on giving consent for sex.
Instead of the common rule of "no means no," which implies that unless a person says no, the other person in a sexual encounter assumes there's permission, an affirmative consent would be required.
Silence would not mean it's OK.
Sen. Patty Pansing Brooks introduced a bill (LB988) Thursday that would adopt affirmative consent as the standard for criminal sexual assault cases.
As it is now, state law says a person must express a lack of consent through words or conduct.
With the bill, consent means words or overt actions that indicate a knowing and voluntary agreement, freely given, to engage in sexual contact or intercourse. A person could also still withdraw consent with words or conduct.
According to the bill, these things would not imply or give consent: current or previous dating, social or sexual relationship by itself; how the person is dressed; the victim's use of drugs or alcohol.
The University of Nebraska already uses the affirmative standard in its sexual misconduct policy.
Pansing Brooks said a college student led the way on the bill.
Brodey Weber, a sophomore at the University of Nebraska-Lincoln, has been interested in the topic since high school, when he went to a national Young Democrats convention. He heard a speaker there, the president of the California state senate, Kevin de Leon, the first in the nation to introduce a "Yes Means Yes" bill.
Writing in The Washington Post, de Leon and Hannah-Beth Jackson said that while “no means no” has become a well-known slogan, it places the burden on victims, making it their responsibility to show resistance.
No means no "has also been mocked and twisted into offensive slogans by some college fraternities. Others, like conservative radio host Rush Limbaugh, have contorted it further, promulgating the notion that no really means yes 'if you know how to spot it,'" they said.
Weber came back to Lincoln, and for a class project researched laws on affirmative standards in other states, such as California, Montana, New York and Illinois, to see how Nebraska could follow their lead. In other states, the bills have had bipartisan support, he said.
"The way I looked at it is, I can't keep waiting for someone else in Nebraska to finally do something about it," he said. "I've always been a very big believer in activism. If I want something changed, I have to do what I can to change it."
When he interned in Pansing Brooks' office, he offered her office his research. The senator then crafted a bill and brought it forward.
If the bill would be passed, Weber acknowledged, it would take time to convert to an affirmative-consent culture.
But it didn't take him long to understand the idea that in sexual encounters a person needs to get a yes.
"I don't think it should be the hardest thing for individuals to understand that to engage in sexual activity they just need a clear, enthusiastic and simple yes to do so," he said.
And when drugs or alcohol are involved, "it is very important to be even more careful just because of how slippery and messy it can get," he said.