California Gov. Jerry Brown (D) signed a law mandating high schools to teach students “Yes Means Yes” when it comes to sex on Thursday.
The Los Angeles Times provides the details:
The measure also requires lessons promoting affirmative consent before couples engage in sexual relations.
“I firmly believe that by instilling in young minds the importance of affirmative consent and relationships built on love and respect, that we can reduce the sexual violence inflicted on young women,” said state Senate leader Kevin de León (D-Los Angeles), co-author of the bill with Sen. Hannah-Beth Jackson (D-Santa Barbara).
The law is the first of its kind in the nation, according to the legislators, and follows a measure signed last year requiring college campuses to improve policies to prevent sexual assault and to require that couples affirmatively consent before engaging in sex.
“Without … action, more than 100,000 students will be sexually assaulted on college campuses nationwide,” said Sofie Karasek, co-founder of the group End Rape on Campus. “By passing this bill to educate high school students about consent, California is taking a critical step towards lowering that number.”
It is not clear how a law teaching students to give verbal assent before engaging in sexual intercourse would prevent over 100,000 students from being sexually assaulted.
The “Yes Means Yes” law, SB 967, was passed in 2014 and defines as sexual consent as “verbal ‘affirmative consent’ before engaging in sexual activity.” A lack of resistance does not mean consent.
“Without having students check boxes and sign consent forms, how do you insulate yourself from an accusation?”
Mark Werksman
The result has been a myriad of legal problems:
George Washington University law professor John Banzhaf, however, says the imprecise definition of “affirmative consent” means couples who do not specifically discuss consent may be guilty of sexually assaulting each other, and that under the law a female student could be charged with sexual assault if she offers oral sex and her inebriated partner accepts.
“This may seem bizarre that a guy who is presumably laying back and having oral sex and one assumes enjoying it – or at least tolerating it – is not consenting simply by doing that, but under that definition if he didn’t say ‘yes,’ she’s a sexual violator,” he says.
Banzhaf says students may be increasingly inclined to videotape sexual encounters to prove their innocence, though that may not be advisable in California, which requires the consent of all parties involved in a recording.
Los Angeles defense attorney Mark Werksman had similar sentiments:
“Without having students check boxes and sign consent forms, how do you insulate yourself from an accusation?” he says. “You can see the potential for absurd accusations and dangerously unfair outcomes.”
Werksman says university judicial systems are, in his experience, “a combination of kangaroo courts and witch hunts” that are predisposed to believe accusers without skepticism. He expects his job will now become more difficult.
“You’ve got young people who have been raised in a hookup culture. You have apps now that allow you to have sex with any suitable partner within 50 yards,” he says. “But now if they act on these impulses… they are subject to prosecution if they don’t get affirmative consent. What is affirmative consent? Is it a smile? Is it a whisper? Does it have to be in writing?”
And as expected, lawsuits from students began flooding the courts:
Such was the case at Occidental College, where both students in an incident were likely too drunk to consent under the standard, and by witness accounts the accuser initiated the sexual activity. But once she filed a claim, the responsibility to prove consent fell on the accused student.
If both parties are responsible for obtaining consent, then realistically both should have to prove they obtained consent. That is not what is happening in practice. When the Occidental student tried to file a counterclaim alleging he was unable to consent under yes-means-yes policies, his complaint was dismissed. The school said the reason was the timing — he filed after he had already been accused.
A better method to address the issue of rape would involve having the universities adhere to proper criminal police procedure. As Katy Grimes at Flash Report writes, “University disciplinary panels are not made up of trained judges, police officers, legal mediators or attorneys, and instead are made up of university employees. They have an interest in protecting the university, and not the rights of the accused, and victim.”
