In September 2015, Governor Jerry Brown signed into law the Yes Means Yes rule, the first law in the nation to require California colleges to adopt an affirmative consent standard in sexual assault cases. The legislation is controversial, but advocates see it as an acknowledgment that a “rape culture” is prevalent on university campuses, and politicians and campus administrators need to address that.
After decades of “implied consent,” the more explicit “affirmative consent” has suddenly achieved social and political clout. Politicians and university administrators in other states are considering or adopting Yes Means Yes policies of their own. Even the White House has put together a task force to study the problem of campus rape, citing studies showing that one in five female students is sexually assaulted, and has launched an It’s On Us campaign to encourage students, especially college men, to prevent sexual misconduct. The question is, will changing the former standard of No Means No to Yes Means Yes actually cut down on the number of campus rapes?
According to the legislation introduced by state senators Kevin de Leon and Hannah-Beth Jackson, affirmative consent means this: “It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. 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.”
University of California administrators know they need to improve. In June, UC President Janet Napolitano announced the formation of a task force to stop sexual violence at UC’s ten campuses, and in September unveiled her plan, which includes fixing the problems found in the audit. These are the sorts of procedures that Berkeley has already implemented, including providing better trained personnel to investigate sex crimes and to support and advise victims.
Yes Means Yes is not being universally embraced. Its detractors say that active consent is too difficult to regulate. It’s “he says, she says” all over again. They also see the law as disturbingly invasive—government in the bedroom. And some say the worst part is that the law shifts the burden of proof. Now, instead of the accuser having to prove she or he said no, the accused has to prove his or her partner said yes. And since in most situations the accused is a man, men are feeling especially vulnerable to the new law. Gordon Finley, advisor to The National Coalition for Men, a San Diego–based nonprofit, had hoped the governor would veto the bill.
“It is tragically clear that this campus rape crusade bill presumes the veracity of accusers (a.k.a. ‘survivors’) and likewise presumes the guilt of accused (virtually all men). This is nice for the accusers—both false accusers as well as true accusers—but what about the due process rights of the accused?” wrote Finley, who is also Professor Emeritus of Psychology at Florida International University, in an article on the organization’s website.