"Yes Means Yes:" What You Should Know About California's New Law

A few weeks ago, on September 28, California made history in enacting the United States' first affirmative consent law. Also known as “yes means yes,” the bill was first proposed in February of this year, following reports that many incidents of sexual assault on college campuses were not investigated. Statistics revealed that one in five women experience sexual assault during their time at university. In addition, a study involving 440 colleges and universities found that more than 40% of these schools had not conducted a single sexual violence investigation in the last five years. With such alarming discoveries, California universities and legislators were under pressure to make policy changes.

 

 

Under the new law, the definition of consent requires “an affirmative, conscious and voluntary agreement to engage in sexual activity.” In other words, rather than seeking a “no” to stop activity, individuals should explicitly seek a “yes” before continuing. Lawmakers affirm that consent can also be nonverbal, as long as it is ongoing and clearly conveyed. Examples of nonverbal affirmative consent includes body language, such as a nod or moving closer to the person. The law also declares that each person engaging in sexual activity has the right to stop at any point, should anyone begin to feel uncomfortable. In short, the law asserts that silence or absence of resistance does not necessarily indicate consent, and states that an individual who is drunk, drugged, unconscious, or asleep is unable to give consent.

 

The law applies to all post-secondary schools in California receiving government financial aid and changes the way that school officials investigate allegations of sexual assault on campus to ensure that victims will not be asked inappropriate questions. Under the law, faculties reviewing such cases will now have special training. Investigations will also have survivor-centred protocols, which include providing counselling and mental health services for survivors.

However, critics of the law argue that it violates the due process rights of the accused in presuming culpability, rather than the American tradition of assuming plaintiffs to be “innocent until proven guilty.” Instead of obliging the complainant to prove resistance, the accused must prove that consent was sought and granted. Proving that consent was given can be difficult under this law, as cases may potentially become “he said, she said” scenarios. Legislators have not offered any suggestions for the accused on how to prove consent. Other objections to the law include the claim that it implicitly criminalizes most sexual interactions.

Still, adoption of this new law marks a historic moment in American history. Other states across the country, including New York and New Hampshire, are beginning to take steps towards establishing affirmative consent laws of their own. Students at Harvard University are petitioning the school to implement their own “yes means yes” policy. In Canada, University of Regina students and staff commend the Californian law, and hope to emulate it in their procedures for reviewing allegations of sexual assault. Though Canadian laws already define affirmative consent, the Canadian Federation for Students is supportive of the “yes means yes” campaign. On our own campus, all students living in McGill residences are required to attend a “Rez Project” session, which focuses on maintaining safe spaces on campus. While the general message of the rape culture aspect of this project still emphasizes the popular refrain of “no means no,” perhaps McGill may change to promote “yes means yes” in the future.

While we still have a long road ahead of us in eliminating sexual violence on college and university campuses, California’s “yes means yes” law is certainly a significant step forward.

 

Works Cited:

http://globalnews.ca/news/1601462/canadian-students-get-behind-yes-means-yes/

http://www.cnn.com/2014/09/03/living/affirmative-consent-school-policy/

http://www.huffingtonpost.com/2014/10/09/harvard-yes-means-yes-petition_n_5959196.html

http://time.com/3222176/campus-rape-the-problem-with-yes-means-yes/

http://www.cbsnews.com/news/yes-means-yes-becomes-law-in-california/

 

Images obtained from:

http://www.dazeddigital.com/artsandculture/article/21986/1/california-passes-yes-means-yes-sexual-consent-bill

http://www.lfpress.com/2014/08/29/california-passes-yes-means-yes-campus-sexual-assault-bill

http://my.umbc.edu/news/46953

http://www.commondreams.org/news/2014/09/29/effort-combat-campus-sexual-assault-california-yes-means-yes-signed-law