A 2007 study by the Department of Justice found that one in five women is the victim of an attempted or completed sexual assault while in college. A new California law is designed to help cut those numbers by making colleges replace the "no means no" rule with a "yes means yes" one when they evaluate sexual assault cases.
The new standard comes from SB 967, nicknamed the Yes Means Yes law, which California Governor Jerry Brown signed into law on September 28. Now that it's passed, all schools that get state money for financial aid have to use what is known as an "affirmative consent standard" to decide whether a sexual assault took place. That means that if both people didn't make it absolutely clear that they consented to their sexual encounter, the college can find that the person who didn't consent was assaulted.
Although this approach isn't totally new — the University of California system, as well as every Ivy League college except for Harvard, already use affirmative consent standards — California is the first to make it statewide law.
What exactly does the new law do?
The new law doesn't change the criminal liability of a college student who is charged with rape or what happens when a student goes to the police to report a sexual assault. It only dictates how sexual assault claims are handled internally at California colleges and universities that accept state money for financial aid (which is just about all of them).
Before, when a student in California went to her college or university administration to report a rape, the school could evaluate what happened in any way it saw fit. Under the new law, colleges have to use a set standard to determine whether the victim provided "affirmative, conscious, and voluntary agreement to engage in sexual activity." In other words, did she either say "yes" or make it very clear that she meant "yes"?
Why are people calling it the Yes Means Yes law?
It's an oversimplified way of describing the changes above and emphasizing that the law is a departure from the more common approach to sexual assault allegations, which is to ask if the alleged victim ever said "no."
It would be more accurate to call it the "affirmative consent to sexual activity means consent to sexual activity" law, but that's not as catchy.
What is "affirmative consent" for sex?
Here's how the new law puts it:
"Affirmative consent" means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
The law makes clear that this type of consent can't be given by someone who is asleep or incapacitated in any way, including by drugs and alcohol.
So college students who are drunk are incapable of providing the type of consent that would let their schools rule out that they were sexually assaulted. The law also says drunkenness isn't an excuse for being confused about whether you received affirmative consent from your sexual partner.
Another important element of the law is that it requires consent to be "ongoing" and allows it to be "revoked at any time." So someone could agree to some sexual activity and then, later in the encounter, withdraw her consent. In that case, she would become a victim of sexual assault if the encounter were to continue. This also means that being in a relationship with someone, or having had sex with them before, is not proof of consent.
Do men have to give affirmative consent, too?
Yes. The sexual assault policies required by the law make no distinction between the kind of consent required by a man and the kind of consent required by a woman. In this article, "she" is used to refer to victims of sexual assault and "he" to refer to perpetrators, but that's only for simplicity and to mirror the most common facts in these cases.
So what happens if someone says they didn't give affirmative consent for sex?
When deciding whether someone committed sexual assault by having sex with someone who didn't give affirmative consent, California schools now have to apply a "preponderance of evidence" standard that mirrors the lower standard of proof used in civil cases, compared to the "beyond a reasonable doubt" one used in criminal court.
This means that the new law doesn't just make the standard for consent higher in cases of college sexual assault, but it also decreases the amount of evidence required to conclude that consent was absent. These changes combine to mean that someone accused of sexual assault is much more likely to be found guilty by his college than he is by a criminal court.
And what happens if the school decides he's guilty? Federal law requires colleges to punish students they deem guilty of sexual assault in some way, but it doesn't get any more specific than that. So if a school does find a student has committed sexual assault, the exact consequence will depend up on the discretion of school officials.
So any sex without affirmative consent must literally be defined as sexual assault by California colleges now?
Yes. But colleges are not going be looking into whether their students have had sex without affirmative consent, except in cases where one party believes she has been sexually assaulted and reports it. Couples who have sex without providing affirmative consent but are both willing participants are not going to be tracked down and punished by their schools.
Isn't this just going to create "he said, she said" situations?
Rachel Van Cleave, dean of Golden Gate University School of Law in San Francisco, told Bloomberg in an interview that it's true that allegations of sexual assault in the context of this new law may still come down to "he said-she said." But, she added, "[Rape] always will come down to that."
In other words: many sexual assaults, regardless of the legal standard at play, will require decision makers to decide which one of the only two people who were there is telling the truth. This new law doesn't change that. It simply changes the nature of topic about which the accused and accuser are testifying. In the criminal context, the question the court asks is generally "Did she say no?" In the California college campus context, that will change to "Did she say yes?"
What are critics saying?
The National Coalition for Men, a men's rights organization, in anticipation of the law's passage, posted an editorial warning that the new standard would threaten the "due process rights of the accused."
Other critics include those who worry, like Reason's Shikha Dalmia, that the law will "inevitably snag some guys who earnestly meant no harm," or are concerned that the law is impractical or will be difficult to implement, presenting hypothetical situations like, "If a woman performs oral sex on a man without asking him first, and if he simply lies back and lets her, has she, by the law's definition, assaulted him?"
What are supporters saying?
Supporters hope the new law will lessen the burden of proof for students who have been sexually assaulted, making it easier for them to ensure that their attackers are punished. Senator Kevin de Leon (D-Los Angeles), who introduced the the law, said it has "shifted the conversation regarding sexual assault to one of prevention, justice, and healing."
The law also has the support of victims' rights groups, violence prevention groups, and the University of California System, CNN reports.
In response to critics who say the requirement of obtaining affirmative consent is impractical and interferes with the way sexual intimacy works, Ann Freidman wrote in a piece for New York Magazine: "I beg to differ. Confirming consent leads to much hotter sex."
What do Americans overall think about the law?
Fifty-nine percent support it and just 21 percent disapprove of the law, according a HuffPost/YouGov poll.
Why is the law focused on colleges?
While sexual assault is a problem much bigger than colleges, there's a lot of recent interest in how to respond to what's been called an epidemic of campus sexual assault (One in five women experienced an attempted or completed sexual assault while in college, according to a 2007 study funded by the Department of Justice)
This has been recognized at the highest levels of government. In May, the Department of Education announced that it was investigating at least 55 colleges and universities for possible violations of federal law in their handling of sex abuse claims.
In September, the White House launched a campaign to prevent sexual assaults on campus. Among its task force's recommendations for improving sexual misconduct policies was that college sexual misconduct policies should define consent as "voluntary agreement to engage in sexual activity."
It's no surprise that against this backdrop, the California legislature took notice and passed a law that aims to change the standard at colleges.
Does the new law do anything else?
Yes. While the affirmative consent provision is by far its most controversial, the law makes other changes. For example, it requires that California student financial aid programs have policies covering the disclosure of crimes that occur on campus, training campus officials, and protecting the privacy of and providing counseling for sexual assault survivors.