Last month, a new bill was signed into effect in California that clearly defines what college campuses consider consent to participate in sexual activities. Under the law, affirmative consent is required before two parties engage in sex. Here’s what you should know about the law, courtesy of criminal attorney Peter M. Liss.
The most important thing to recognize is that this law specifically applies to college campuses, specifically those colleges that accept state funding. If two adults who are not enrolled in college have sex, they will not be affected by the law. While the law is something residents should be aware of, it will not impact most relationships. If you aren’t sure if the law applies to a specific situation you may be involved with, contact a defense lawyer to discuss your individual circumstances.
In incidents that do take place between students enrolled in college, the law now mandates that a victim does not need to say “no” in order for rape to occur, but that anything short of an “enthusiastic yes” is not considered consent. This also means that persons under the influence of drugs and alcohol are not in a position to legally consent to sexual activity. Specifically, the law reads, “lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.”
The goal of the measure is to reduce cases of date rape and other forms of sexual assault on campus while helping victims by asking the accused to prove they obtained consent rather than requiring victims prove they did not consent. While these goals are noble as sexual assault is a serious problem on college campuses, this standard places an unfair burden on the defendant, given that the constitution provides that the burden of proof is on the prosecution, not the defendant.
In fact, this law will probably be appealed to the California Supreme Court shortly after it is enacted because the law places such a heavy burden on the accused party.Lawyers will not only question the affirmative consent standard but the lack of due process afforded suspended students. Many critics of the law say colleges are ill equipped to investigate and litigate issues of sexual violence and some critics have even joked about requiring both parties to sign a contract before engaging in sexual activity. While drafting a contract before a sexual encounter is obviously an exaggeration, it does seem to be the only fool proof way to ensure you are protected from false accusations under this law.
For now, the law only applies to school codes of conduct, so even those that are found guilty under the “yes means yes” standard will only face suspension or expulsion from school, not criminal charges. While it may not be a standard in criminal trials, this is an important thing to keep in mind as it is entirely possible the legislature could later enact a similar law that applies throughout the state. Even under our current standard, someone is not considered to consent to sexual activities if they are underage, intoxicated, unconscious or mentally challenged, so it is still best to ensure the other party is actually consenting before you engage in sex. If you have any questions about consent in sexual activities, please call (760) 643-4050 or (858) 486-3024 to schedule a free initial consultation with Peter M. Liss.
Creative Commons Image by roga muffin