California considers 'yes means yes' sex law

Posted Aug 14, 2014 by Mike Rossi
In what would become the first of its kind, California state legislators are weighing the establishment of a ground-breaking sexual consent law.
Wheeler Hall  UC Berkeley
Wheeler Hall, UC Berkeley
The law, suggestively nicknamed "yes means yes," requires any university in the state of California and in reception of public funds to establish an "affirmative consent standard" for sexual activity among the university's population.
Lawmakers hope the passage of such a law will help university police departments to investigate allegations of rape and sexual assault by creating a more concrete definition of consent.
For years, college administrators and judicial bodies have been forced to rely upon the limiting boundaries of the "no means no" ideology in which the victim is responsible for communicating — verbally or non-verbally — their unwillingness to participate in sexual activity.
In theory "no means no" should provide investigators with the necessary means to determine if non-consensual action took place, but drugs, alcohol and assailant-induced fear can impair the victim's ability to communicate, subsequently creating a grey-area miring legal inquiry.
The bill stipulates both persons involved in a sexual encounter need to ensure they have the affirmative consent of their partner(s) by obtaining "an affirmative, conscious and voluntary agreement" to engage in the sexual activity.
The legislation further stipulates the "lack of protest or resistance does not mean consent, nor does silence mean consent."
Proponents of the measure, including its co-author California state senator Hannah-Beth Jackson, are hailing it as a legal triumph which will deservedly shift the onus from the complainant (usually female) to the accused (usually male).
However, opponents of the pending bill have some very legitimate concerns.
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“This bill would very, very radically change the definition of rape,” said George Washington University law professor John F. Banzhaf III.
Given the way the new legislation is written, not only could both parties accuse each other of sexual assault — leading to a never ending series of legal stalemates — but asking university judiciaries to translate chemically impaired accounts of verbal or, far more cumbersome, nonverbal cues opens a massive door for never-ending litigation.
For now, it remains to be seen if the bill will actually turn into law: at this stage it sits with the California state Assembly having only passed the California state Senate. Expect the Assembly to vote on the measure some time this month.