In 2014, California became the first state to enact a “Yes Means Yes” law on college campuses to improve how universities handle rape and sexual assault accusations and to clarify the standards, requiring an “affirmative consent” and stating that consent can’t be given if someone is asleep or incapacitated by drugs or alcohol.
This law of good intentions has achieved a lot in the minds of sexual assault survivors, but the Bureau of Justice Statistics found the rates of sexual violence “experienced no significant change” from 2006 to 2015. As it stands in 2019, the law has brought as much controversy as it has relief, which is perhaps why lawmakers have been hesitant to apply “yes means yes” more broadly across the state, outside the college campus environment. Former Governor Jerry Brown vetoed such legislation in 2017, leaving many unclear about the laws regarding affirmative consent in California.
Affirmative Consent is the Standard on Many College Campuses
Under the “Yes Means Yes” law (Senate Bill 967), “yes means yes,” rather than “no means no” in determining whether a sexual assault took place. The law applies to all California schools receiving state financial aid money, but many private schools like Stanford and USC have adopted the increased consent standard. State public high schools are also taught “yes means yes” as part of their sexual education.
“Yes means yes” requires both parties to give their authentic, uncoerced, voluntary, and ongoing affirmative consent every step of the way during a sexual encounter. If one of the parties is intoxicated, passed out, or otherwise silent, consent can’t be automatically implied. Consent may also be revoked at any time.
The law also requires schools to adopt a “preponderance of evidence” standard (greater than 50% likely to be guilty), which is much lower than the “beyond a reasonable doubt” standard common to criminal proceedings in courts.
Does the Affirmative Consent Law Apply Off-Campus?
Currently, there is no broad-based affirmative consent law in California. Former Governor Jerry Brown vetoed legislation that would have expanded the “yes means yes” affirmative consent standard beyond the boundaries of college campuses.
The governor reasoned, “Thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault—well-intentioned as they are—have also unintentionally resulted in some colleges’ failure to uphold due process for accused students.”
The Controversy Surrounding Senate Bill 967
Prior to 2015, college student victims had to prove “beyond a shadow of a doubt” that they did not consent to sexual interactions. Without a clear and forceful “no,” it was hard for survivors of sexual assault to prove the acts were unwanted.
Having an affirmative consent standard changes the dynamic in favor of the survivor. But, many believe that SB 967 makes it difficult to prove innocence for students accused of campus sexual assault.
Many believe:
- The legal standard infringes on due process of the accused. “Affirmative consent laws turn normal human interactions into sexual offenses,” opponents of the law argue. “They establish a presumption of guilt and strip the accused of due process protections. They are also being used by campus activists to selectively prosecute students with unpopular viewpoints on controversial issues,” according to Reason.
- The law is ambiguous at best and awkward at worst. One editor put it this way: “As a legal standard, nonverbal affirmative consent leaves campus tribunals in the position of trying to answer murky and confusing questions.” Do nonverbal actions of consent mean nothing? Would mandating these standards “kill the mood” and make a terribly awkward situation out of an otherwise enjoyable encounter? Sex therapists will argue the best sex requires “letting go” of self-consciousness, but this guideline demands the opposite.
- Some have gone too far in their rhetoric. Ezra Klein of Vox won few fans when he said, “Everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.” Filling colleges with cases “in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations” is merely the price of progress, in some views.
- The law doesn’t go far enough in addressing the real problems. Even self-ascribed “feminists” say they are unhappy with the government’s weak prescription for sexual assault. According to Roz Galtz: “Far more productive fix than state-by-state replication of California’s SB 967 would be to pass federal legislation dismantling campus criminal adjudications altogether, along with the state and federal programs that lend them legitimacy and gravitas… Rather than wasting time managing pretend-judicial systems, they should direct their formidable resources to improving community-based access to rape crisis advocacy, which research suggests would do far more to help survivors than new consent standards ever could.”
Contact Sexual Assault Attorneys About Affirmative Consent in California
The laws regarding sexual assault and affirmative consent in California can be confusing, and it can seem like forever waiting for the legislature to catch up to public sentiment or to get it right. San Francisco sexual assault attorneys Lewis & Llewellyn are happy to discuss your case and California’s standards for consent during a free consultation. We represent sexual assault survivors wishing to pursue justice through the civil court system. Compensation may be available to cover pain and suffering, medical bills, the cost of therapy, lost wages, and other tangible losses stemming from the assault.
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