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How can those accused of sexual assault prove consent under 'yes means yes'? By Ashe Schow


This isn’t one of those articles where I ask a question in the headline and provide the answer in the text. Because the truth is, I don’t know how someone accused of sexual assault is supposed to prove they obtained consent under the new “yes means yes” policies.

And it looks like no one else knows either.

I reached out to the lead sponsor of the California affirmative consent law, state Sen. Kevin de Leon, because when I tried asking other sponsors of the bill, they directed me to him. His office provided a lengthy description of the bill that did not actually answer my question. My follow-up thus far has gone unanswered (although they are three hours behind).

Then I tried contacting California Gov. Jerry Brown, who signed the "yes means yes" law. A representative from his office said they would find someone to answer my question. I never heard back.

So I reached out to U.S. Sen. Kirsten Gillibrand’s office, since she is the most vocal sponsor of the U.S. Senate sexual assault bill. Again, nothing — though the Senate is on recess, so we'll see.

Likewise, I tried to contact New York Gov. Andrew Cuomo, since he implemented a versionof "yes means yes" on all of the State University of New York’s campuses. So far, silence.

I called Chicago Mayor Rahm Emanuel’s office as well, and was asked to provide my question in an email to the press office. I still have not received a response.

I then tried to contact state Rep. Renny Cushing,who introduced a bill in New Hampshire modeled after California’s "yes means yes" law. No return call.

I called New Jersey state Sen. Jim Beach, who introduced his own affirmative consent bill in the Garden State. A representative from his office said she would pass my question along, but I have yet to be answered.

With no luck from politicians, I turned to lawyers Alan Dershowitz and Robin Steinberg, both critics of the policy. I haven’t had a response from either, although they may be out for the holidays.

Fine, I decided, I would take my question to the schools that actually have to operate under these policies. I reached out to Occidental’s Title IX coordinator in California, since that school is being sued for denying a student due process rights after being accused of sexual assault. No response


I likewise tried Columbia University, which seems to have a problem with denying due process. Again, nothing, not even an out-of-office reply.

So I sent my question to nearly two dozen administrators at various SUNY campuses trying to find my answer. All I have received so far is two out-of-office replies.

I then tried to reach out to an outspoken supporter of the policy, feminist writer Jessica Valenti. As expected, she hasn’t responded, but I know she is always busy with speaking engagements and it is the holidays, so I’ll give her the benefit of the doubt.

Maybe no one has responded because I’m just a no-name writer at a small publication. Maybe they would respond to the Washington Post or the New York Times. Maybe they didn’t respond because of the holidays. Who knows?

But there is one person — possibly the only one on the record — who has answered my question.

Asked how an accused person could prove consent was obtained before sex, California Assemblywoman Bonnie Lowenthal, D-Long Beach, told the San Gabriel Valley Tribune in June that “your guess is as good as mine.”

“I think it’s a legal issue,” she added. “Like any legal issue, that goes to court.”

And that might be the only answer we get.

Outside of videotaping (which might also lead to legal problems), notary witnesses, signed contracts and Breathalyzers, a person accused of sexual assault simply cannot prove they obtained ongoing consent throughout the process of sex and did not rely on silence, past sexual history or their partner's (victim's?) use of alcohol. It is already conceivably possible for any sex act to lead to a rape accusation, but this standard narrows the potential proof one can offer for one's innocence. It requires evidence that is basically impossible to produce, provide, or even (as the lack of answers suggests) imagine.

Under this law, an accusation is as good as evidence. Does every sexual encounter need to be recorded and documented just in case some time in the future one person decides to call it rape? Under these policies, yes.

And don’t say that “this is an extreme or absurd scenario” line either, because we’re seeing sexual assault accusations treated this way already. These laws only stand to make the situation worse.

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