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California 'Yes Means Yes' Law Worries Skeptics by Steven Nelson


California’s new “Yes Means Yes” law, designed to address sexual assault on college campuses, will produce unintended consequences that could technically make many couples guilty of mutual sexual assault, several legal experts say.

The law, SB967, was signed over the weekend by Gov. Jerry Brown, D-Calif. It requires state-supported colleges to mandate continuous "affirmative consent" from all parties engaged in sexual activity.

Neither silence nor a lack of protest constitute consent, the law says, and heavy drinking - often a contributing factor in sexual assault - makes consent impossible. Under the law, consent is defined as "affirmative, conscious, and voluntary agreement to engage in sexual activity" that "must be ongoing throughout a sexual activity."

The law does not require verbal consent, but does not specify how nonverbal consent would be communicated. Some universities with similar policies already in place have included nodding one's head or moving closer to one's partner as examples of affirmative consent, The Associated Press reports.

The law also requires schools to adopt a “preponderance of evidence” standard for allegations - meaning someone has committed sexual assault if there’s a greater than 50 percent likelihood of guilt - that is lower than the reasonable doubt standard used in courts.

The state legislature overwhelmingly passed the law, cheered on by groups opposed to sexual violence.

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.

David Bernstein of the George Mason University School of Law says the law makes “very drastic changes to the normal rules" and seems "to regulate and make illegal a lot of normal sexual conduct.” In typical sexual interactions, he says, “there’s no, ‘May I do this?’ ‘Oh yes, you may.’ ‘May I now proceed to do this a little harder or a little softer?’”

Bernstein says he’s concerned the consent requirement could apply to kissing or other behaviors legislators did not have in mind.

“The response when you bring up the hypotheticals is, ‘Oh, no one will enforce it that way,’” he says. “But the way to judge a policy or rule is by what it says, not by your expectations of common sense.”

He says sociopathic habitual offenders are unlikely to admit not receiving clear affirmative consent, and that it would better to nudge universities toward the court system - with measures such as civil protective orders - and away from using campus judicial systems. “If this is a sensible standard for sexual assault, why would it only be appropriate for students at a university, not for anyone else at the university, not for anyone else in any other context?” Bernstein says.

Los Angeles defense attorney Mark J. Werksman, who has defended students against allegations of sexual assault, says the new law “is very disturbing and could lead to calamitous results," particularly for those who have been falsely accused.

The lower burden of proof, coupled with the requirement of affirmative consent, may prompt behavioral changes among students terrified of possible allegations, Werksman says.

“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?”

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