Blog Post #2: California’s “Yes Means Yes” law—A Sexual Straitjacket or A Foundational Step for Sexual Assault?

By Lauren Paglini

On September 28, 2014, the crusade against sexual assault achieved a major victory in California when the state senate approved Senate Bill 967.[1] The Bill, commonly known as the “Yes Means Yes” law, aims to change how campus officials investigate sexual assault allegations.[2]The Bill requires all colleges in California that receive state funds for student financial aid to enforce a standard of affirmative consent, referred to as “yes means yes,” in their university’s investigatory sexual assault policies.[3] Bill creators argue California will no longer “sweep rape cases under the rug” [4] as the conversation about sexual assault begins to shift to one of prevention, justice, and healing.

The Bill defines the affirmative consent standard as determinative of whether consent was given by both parties and defines the term consent as an affirmative, conscious and voluntary agreement to engage in sexual activity.[5] The legislation emphasizes that silence or lack of resistance does not constitute consent; further, an individual who is drunk, drugged, unconscious or asleep cannot consent.[6] The Bill requires all students accepting financial aid funding from the state to consent to investigations of campus sexual assault allegations.[7] The legislation requires California universities to adopt a “preponderance of the evidence” standard for allegations.[8] This means there must be a chance of fifty percent or greater that someone has committed sexual assault.[9] Further, the Bill requires training for faculty who are reviewing complaints and requires that victims have access to counseling and health care resources.[10]

Bill proponent Senator Kevin de Leon argues the legislation will begin a paradigm shift in how college campuses prevent and investigate sexual assaults throughout the state of California.[11] De Leon further argues that the Bill will lead the nation in creating standards and protocols around the board to create a healthy, conducive learning environment for students.[12] Feminist writer Katha Politt contends that the California standard will help push public norms and expectations about what consensual sexual encounters actually look like.[13] Sexual assault victim advocates support the Bill claiming the legislation will provide uniformity across campuses and challenge the common notion that victims must resist assault to have valid complaints. Other advocates state that the Bill will educate an entire new generation of students on the real scope of consent.[14]

Though the Bill received overwhelming support in the Senate with a 52 to 16 vote, the Bill has received serious backlash from commentators nationwide.[15] Most commentators attack the ambiguous definition of affirmative consent—affirmative, conscious and voluntary agreement to engage in sexual activity. For example, Nation’s journalist Michelle Goldberg argues that most individuals understand what consent is in practice but creating such a legal standard complicates how the standard will be implemented.[16] Goldberg argues whether moans, nods, smiles, or meaningful eye contact count as consent.[17] George Washington University law professor John Banzhaf states that imprecise definition of “affirmative consent,” denotes that couples that do not explicitly consent may be guilty of sexually assaulting each other.[18] Opponents argue the rule is drastic and troubling because it regulates and outlaws normal human sexual conduct.[19] Critics go as far to say the Bill attempts to place human sexuality in a straitjacket arguing the definitions are not consistent with how adults really act in everyday sexual encounters.[20]Los Angeles defense attorney, Mark Werksman, argues that the Bill may lead to “calamitous results” for individuals who may be falsely accused.[21] Adversaries challenge the murky language stating that administrators deciding an individual’s guilt faced with such ambiguities are likely to “err on the side of caution” and only treat explicit verbal agreements as sufficient proof of consent.[22] Some critics agree with the underlying goal of the bill – ensuring sexual encounters are based on mutual desire and enthusiasm – however, disagree with the government dictating how individuals engage in sexual encounters.[23]

In response to the “Yes means Yes” law, Harvard University students launched a petition asking the school to shift its standard of consensual sex.[24] Further, Ohio implemented language into its Code of Student Conduct that focuses on the importance of affirmative consent.[25] Since the California “Yes means Yes” law passed, New York’s Governor Andrew Cuomo instructed the State University of New York to alter their policy and make affirmative consent the policy.[26] With the nation’s increased attention of sexual assault, it may not be long before other states and universities begin to follow in California’s footsteps.

[1] See Cathy Young, Campus Rape: The Problem With “Yes Means Yes”, Time, Aug. 29, 2014, available at http://time.com/3222176/campus-rape-the-problem-with-yes-means-yes/.

[2] See William M. Welch, California Adopts “Yes Means Yes” Law, USA Today, Sept. 29, 2014, available athttp://www.usatoday.com/story/news/usanow/2014/08/28/california-bill-yes-means-yes-sex-assault/14765665/.

[3] See Economist Journalists, Yes Means Yes, Mr. Brown, The Economist, Oct. 4, 2014, available at http://www.economist.com/news/united-states/21621819-californias-new-standard-consent-future-america-yes-means-yes-says-mr.

[4] See The Politics Editors, California Adopts ‘Yes Means Yes’ Sexual Assault Rule, The Huffington Post, Sept. 28, 2014, available athttp://www.huffingtonpost.com/2014/09/28/california-yes-means-yes_n_5897828.html.

[5] Id.

[6] See The Politics Editor, supra note 4.

[7] See Welch, supra note 2.

[8] See Steven Nelson, California ‘Yes Means Yes’ Law Worries Skeptics, US News, Sept. 29, 2014, available athttp://www.usnews.com/news/articles/2014/09/29/california-yes-means-yes-law-worries-skeptics.

[9] Id.

[10] See The Politics Editor, supra note 4.

[11] Id.

[12] Id.

[13] See Matt Pearce, What they are saying California ‘Yes means Yes’ sexual standard has liberals divided, LA Times, Oct. 26 2014, available athttp://www.latimes.com/local/california/la-me-10-27-what-they-are-saying-20141027-story.html.

[14] See The Politics Editor, supra note 4.

[15] See Young, supra note 1.

[16] See Kierran Petersen, Will ‘Yes means Yes’ laws change the rules of sex?, BBC News, Oct. 09, 2014, available athttp://www.bbc.com/news/blogs-echochambers-29546959

[17] Id.

[18] See Nelson, supra note 8.

[19] Id.

[20] See Economist Journalist, supra note 3.

[21] Id.

[22] See Young, supra note 1.

[23] Id.

[24] See Politics Editor, supra note 4.

[25] See Alex Drummer, Ohio State Policies Have Similarities to ‘Yes means Yes’ sexual consent law, The Lantern, Oct. 16, 2014, available athttp://thelantern.com/2014/10/ohio-state-policies-have-similarities-to-yes-means-yes-law/.

[26] Id.