California’s New Consent Law: Yes Means Yes vs. No Means No
Once again, California is at the forefront of addressing a difficult societal problem with a controversial new law. In February, State Senators Kevin de Leon and Hannah-Beth Jackson introduced SB 967 into the California Senate. The bill sought to establish a standard of affirmative consent (or “yes means yes”) at colleges and universities across the state.
In their op-ed, Gloria Steinem and Michael Kimmel call the “yes means yes” consent standard in California’s Senate Bill 967 a “welcome game-changer in understanding and preventing sexual assault.” They argue that replacing the “no means no” standard erases the presumption, “Unless one hears an explicit “no,” consent is implied.”
The Foundation for Individual Rights in Education (FIRE) says SB 967 “would render a great deal of legal sexual activity into ‘sexual assault’ and imperil the futures of all students across California.” FIRE argues there is “no practical, fair, or consistent way” to determine if the legal requirements for consent were met.
Another op-ed argues the new law is “a victory for some campus feminist activists but an ill-conceived detour for feminism,” because making consent the only consideration ignores the “misogyny, gender inequality, alcohol, race, and class that make up the rape culture on campuses.”
Amid this controversy, on Sunday, September 28, 2014, Governor Jerry Brown signed SB 967, which provides a detailed definition of consent to sexual activity for college students that becomes law on January 1, 2015. The California State University and University of California systems supported the bill and already adopted policies with similar definitions of consent.
Under the new law, postsecondary schools that participate in state student financial aid programs will be required to adopt a policy that defines consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity.” Policies also need to define what consent is not:
- lack of objection or resistance does not mean consent
- silence does not mean consent
- consent can be revoked at any time
- an existing dating relationship or previous sexual relations between the persons involved does not by itself mean consent
The law also provides that being drunk or reckless, or failing to take reasonable steps to get consent, will not excuse someone who mistakenly believed the other person consented to sexual activity. Additionally, the person making sexual advances will be responsible if they knew or should have known that the other person was:
- asleep or unconscious
- incapacitated by alcohol or drugs to the point that they did not understand the fact, nature, or extent of the conduct
- unable to communicate because of a mental or physical condition
In addition to a universal standard for determining consent, SB 967 requires specific adjudication processes that will provide more consistent results across schools, including:
- applying the preponderance of evidence standard to decide complaints involving sexual misconduct against a student
- investigating sexual assault complaints that involve drugs or alcohol
- developing protocol for victim interviews
- contacting and interviewing the accused
- identifying and interviewing witnesses
- responding to stranger and acquaintance sexual assault
For campus officials who investigate and adjudicate complaints involving sexual misconduct, schools must provide comprehensive, trauma-informed training programs. Moreover, retaliation against anyone who participates in an investigation or report of sexual misconduct is prohibited, nor can they be disciplined for student conduct violations, such as underage drinking, unless the violation is “egregious.”
Schools are also required to adopt “detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student . . ..” These policies need to cover:
- protecting the confidentiality and privacy of the individuals involved
- assisting victims by providing information about available on- and off-campus resources to support their recovery and reporting options (law enforcement and confidential reporting)
- providing information about preserving evidence for potential criminal proceedings
To the extent feasible, schools must enter into agreements or partnerships with on- and off-campus organizations that provide counseling, health services, victim advocacy, and legal assistance for both the victim and the accused.
Finally, the new law requires comprehensive prevention programs to educate students about the institution’s sexual assault policies, including a practical understanding of the affirmative consent standard, and students’ rights and responsibilities under the policy. The prevention program is required to be part of every incoming student’s orientation.
While this law only affects California colleges and universities, schools across the country should take notice since many of its provisions mirror The Campus Accountability and Safety Act (CASA) legislation introduced by Senator Claire McCaskill on July 30, 2014. We’ll be following debates on the CASA bill when Congress reconvenes after the November elections.