Courtesy of Marcin Wichary
Courtesy of Marcin Wichary

By: Alex Baptiste

California’s new sexual assault law, SB 967, nicknamed the “Yes Means Yes” law, was signed into effect on September 28, 2014 by California Governor Jerry Brown.  It imposes a new standard for determining whether a sexual assault has occurred. The law requires the use of the new “affirmative standard” when investigating sexual assaults and is to be used at all California colleges and universities that receive state funds for financial aid.  Where once there was “no means no,” California now has “yes means yes.” The affirmative consent standard is the first to be enacted as part of state legislation and is regarded as a positive step in protecting a victim’s rights in sexual assault cases.

In 2007, the Department of Justice (“DOJ”) released the findings of a two-year study on sexual violence against women. The study, involving over 5,000 young women, ages 18-25, found that one in five women had been the victim of an attempted or completed act of sexual violence.  In the years that have passed, sexual violence on college campuses remains a major concern of parents, students, and school administrations. Not much has changed.  A 2010 study conducted by the National Violence Against Women Survey corroborated the DOJ study, also finding that one in five women, and one in seventy-one men, have been raped at some point in their life.

California is one of the few states at the front lines of redefining rape and prosecuting sexual assault offenders.  The vast majority of states adhere to the common law principle that once consensual intercourse begins, a man cannot be prosecuted for rape, even if the woman withdraws her consent during the act. However, California is one of seven states to broaden the definition of rape to include the withdrawal of consent.

Prior to SB 967, schools had discretion on the types of investigative methods deemed to be appropriate when reviewing claims of sexual assault. Some of these methods were effective, some were not.  Under the new law however, schools must determine if there was an “affirmative, conscious, and voluntary agreement to engage in sexual activity.”   In case of a question about alcohol-induced consent, the law explicitly states that someone who is drunk, asleep, or incapacitated in any way cannot give affirmative consent.  Furthermore, a “lack of protest or resistance does not mean consent, nor does silence mean consent.”  The law also requires universities to acquire “victim-centered” sexual assault response policies and implement comprehensive programs to prevent assault.

While a “yes means yes” approach may not seem different from “no means no,” the change is more significant than it appears.  Under the previous “no means no” approach, the victim carried the burden to prove they made it clear to their attacker the advances and contact were unwanted.  Now, the victim is given the benefit of the doubt and the accused must show, by a preponderance of the evidence, they had affirmative consent.  In a society that views most rape laws to lay blame on the victim, this slight shift makes a notable impact.

Critics question how this new legislative approach will be more effective than “no means no.”  The National Coalition of Men urged Governor Brown to veto the bill, arguing that the law “presumed the veracity of the accusers and presumes the guilt of the accused.”  Others argue the law tramples an individuals’ due process rights and continues to ignore the reality that sexual assaults are not truly a matter of miscommunication so much as a matter of an aggressor taking what he wants and not caring if consent is given.  There are also concerns because the law makes a history of prior sexual relations irrelevant, that it redefines consent in such a way sexual activity of college couples would technically be considered sexual assaults if affirmative consent is not explicitly given.

Despite the criticism, there is significant support for the “yes means yes” approach.  California’s adoption of this new law challenges other states to enact similar laws to clean up the many issues we hear about on college campuses across the country.  Earlier this month, Harvard Law School professors published an open letter criticizing the university’s newly enacted policies aimed at preventing sexual harassment.  Students of the university have come out in support of changing to an affirmative consent policy. Other universities are also experiencing pressure from their student body to take sexual assault claims more seriously and adopt an affirmative consent policy.

Whether “yes means yes” answers the problems college campuses face when confronted with sexual assault claims remains to be seen.  It seems, however, to be a step in the right direction to fighting the epidemic of sexual assault among young people.  As students and faculty across the country lobby for similar standards and protections, it will be interesting to see how other schools and states rise to the new standard set by California.