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California’s New “Yes Means Yes” Law: Defining Consent in Sexual Assault Raises Practical and Due Process Concerns

Consent — the voluntary agreement of both parties to engage in sexual activity – can be a determinative factor in deciding whether a sexual assault took place, especially in “date rape” situations. When alcohol is involved in a sexual encounter, with unclear communication and hazy memories, determining whether consent was given can be extremely challenging. The “he said, she said” nature of the evidence can leave victims without justice and, conversely, can result in innocent parties being charged and convicted.

Colleges across the country are currently attempting to deal with the very real issue of campus sexual assault. Administrators, students, law enforcement, and others are trying to strike a balance between the need to protect women and prevent sexual assaults from taking place while at the same time ensuring that the due process rights of those accused are protected.

“Affirmative, Conscious and Voluntary Agreement…”

In California, Governor Jerry Brown recently signed legislation that seeks to address the issue of sexual assault on that state’s campuses. Often called the “yes means yes” law, the definition of consent under the bill requires “an affirmative, conscious and voluntary agreement to engage in sexual activity” by each party. Notably, the law states that silence or lack of resistance does not constitute consent, nor does the mere existence of a dating relationship:

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 existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Furthermore, the law states that consent cannot be given if the victim was asleep or unconscious or was incapacitated due to the influence of drugs, alcohol, or medication, such that the complainant could not understand the fact, nature, or extent of the sexual activity.

As the law is specifically directed to California universities and their disciplinary processes, it also contains procedural provisions for those institutions in their investigation and proceedings and establishes a lower standard of proof for determining whether an assault took place or valid consent was given. Specifically, the standard to be used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

Indiana Law

No one takes issue with the fact that sex without consent constitutes rape, and that someone so incapacitated by alcohol or drugs, especially if they were given a substance without their knowledge, is not capable of giving meaningful consent. Indiana law, by way of example, makes it very clear that such circumstances do constitute rape, which is defined as “a person who knowingly or intentionally has sexual intercourse with another person or knowingly or intentionally causes another person to perform or submit to other sexual conduct” if:

  1. the other person is compelled by force or imminent threat of force;
  2. the other person is unaware that the sexual intercourse or other sexual conduct is occurring; or
  3. the other person is so mentally disabled or deficient that consent to sexual intercourse or other sexual conduct cannot be given;

Under Indiana’s new felony classification system effective July 1, 2014, rape as defined above is treated as a Level 3 felony which can result in a prison sentence of 3-16 years. However, rape is treated as a Level 1 felony with potential prison sentences of 20-40 years when “date rape drugs” such as “roofies” or GHB are involved.

Practical and Due Process Concerns

What concerns many about statutes like California’s “yes means yes” law is that the requirement of affirmative, verbal consent, as opposed to non-verbal consent, can leave those charged with determining consent struggling to parse how this new murky standard is applied given the reality of many intimate moments. Additionally, such laws and accompanying rules as applied to colleges and other tribunals which make those determinations outside of the criminal justice system may not provide the due process protections (right to counsel, right to confront witnesses, and a “beyond a reasonable doubt” standard) that are afforded to the accused under the criminal law. The California law’s use of a “preponderance of the evidence” standard in determining guilt and imposing discipline is of particular note in this regard.

Defending against sexual assault charges already difficult. The court of public opinion rarely gives individuals the same due process rights as our criminal justice system and even being accused of rape or sexual assault is enough to ruin relationships, careers, and reputations. Laws such as California’s which in their noble efforts to protect victims also put the rights of the accused at risk need to be closely scrutinized to ensure that the proper balance is struck.

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