“Yes Means Yes” law passes in California

13 thoughts on “Yes Means Yes” law passes in California

1. Does this bill mean that the onus is on the accused to prove an encounter with the accuser was consentual? And if the accused cannot provide evidence that an encounter was consentual they would be found guilty of sexual assualt? I read the bill and it’s difficult to tell.

   1. As I understand it, it doesn’t change the burden of proof. It merely changes what kind of consent counts. Under a “yes means yes” policy, you cannot claim, for example, that an absence of protest amounts to consent.

      Instead both have to *actively* consent in some way, usually that’ll be either verbally or trough actions. (a person who kisses you can be assumed to consent to being kissed back and so on)

      It makes no difference really for the cases where the dispute is over fact, were one side claims that clear consent WAS given, and the other side claims that it wasn’t.

      1. Thank you! Well it’s many steps in the right direction anyway I’d say.

2. Here’s the link to the text of the bill.

   Here’s the part of the law which is relevant. Colleges must adopt (all text following this paragraph is copied directly from the bill) rules that state:

   (1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. 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.

   (2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
   (A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
   (B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.

   (3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

   (4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
   (A) The complainant was asleep or unconscious.
   (B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
   (C) The complainant was unable to communicate due to a mental or physical condition.

3. Forgot to point out that the bill contains text which provides “that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution’s student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.”

   You might, if you’re an economics major, wonder what incentives this might create.

   1. You might, if you’re an economics major, wonder what incentives this might create.

      Only if you’re a complete asshole, yeah.

      1. You know what, let me expand on this because I have the energy right now.

         This is the kind of bullshit that gets trumpeted around by unethical conservatives who claim in the media that schools celebrate victimhood with absolutely zero evidence. You, likewise, have zero evidence to support a premise that people will increasingly make false rape reports if they’re not going to get punished for it. (And no, there are no “incentives” – there’s a reduction in existing “disincentives”). You are on a feminist website, and I honestly cannot ever figure out if you post here in any kind of good faith. If you are, maybe you should reflect on whether it’s appropriate to post inflammatory, victim-blaming-adjacent rhetoric at a site you know will be populated by victims of assault.

         1. Huh? I would never blame a victim. Neither am I doing so here.

            We’re discussing a recently-implemented law which has never been used. Ever. There isn’t a single victim to discuss. There isn’t a single case to reference. I mean, if there was ever a discussion which was NOT victim blaming, this would be it: can you point to a single victim being blamed here, or even explain how it could even be possible to do so?

            There has to be SOME way to discuss a shitty law, even if that law happens to have been written with good intentions. Part of that discussion is pointing out the flaw in the law–which, yes, in this case include incentive issues among far more obvious traits.

            But perhaps I am misreading. So let me ask you directly: do you think it is simply inappropriate for a feminist board to even entertain this discussion? If so, I’ll drop it, though I think it’s a mistake. if not, i’m happy to explain why I said that.

         2. “Victim-blaming-adjacent” is the direct quote.

            Yes. I think fear-mongering about a reduction in the existing disincentives to report is inappropriate for a feminist website.

         3. It’s only fear-mongering if the issue is blown out of proportion. Simply raising the issue for consideration, particularly in the context of a new and untested law, is perfectly legit. When analyzing any law/policy, you have to consider both the incentives and the disincentives and then weigh them against each other. This law removes a disincentive to filing a true report, and in the process, it also creates an incentive to file a false report.

            You can certainly argue that it’s a worthwhile trade-off or that other disincentives to filing false reports (general human decency, possible criminal sanction, all the personal costs that often come with filing any rape report, etc.) are more than enough to counter any incentive this might create in the other direction, but limiting the analysis to only the positives is both irresponsible and intellectually dishonest.

            Yes, the anti-feminists are going to play up this issue and engage in precisely the fear-mongering you suggest, but that doesn’t mean the rest of us have to cede the field to them; we can discuss and debate the actual issue in a responsible way.

         4. Sorry. There’s no part of me that sees the discussion as “intellectually honest” when one of the only responses on a post on a feminist website about a bill designed to help rape victims is by a self-identified man who immediately insinuates that false rape reports are going to go up. That’s not intellectual honesty. That’s fear mongering.

   2. You might, if you’re an economics major, wonder what incentives this might create.

      I’m not an economics major, but I did stay at a Holiday Inn Express last night.

      This basically codes a first-to-file advantage into the system. For example, if two intoxicated people hook up during a party, then the first one to make a complaint is automatically protected from a complaint from the other party.

      The incentive? Report first. If you think there’s even a chance that your partner is going to make a complaint, make sure you make one first, lest you be screwed.

      Sure, on the surface, this sounds distasteful, and in a perfect world, we wouldn’t need these kinds of rules. But first-to-file advantages are exceedingly common in the legal world, (as I’m sure you’re aware) and they often serve a very important purpose in allowing people to come forward without fear of a counter-claim. I don’t see any language favoring any particular sex in the law – presumably, young men are every bit as free to report their female partners as they are to be reported on. (I realize that legal equality and culture don’t move in lock-step, but hey, thems the breaks. Men will adapt.)

      At most, I suspect we’ll see hook up culture slightly…probably very slightly…dampened by the fear of expulsion resulting from an unhappy hookup. That’s…not all that terrible a price to pay, actually.

4. Forgot to point out that the bill contains text which provides “that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution’s student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.”

   You might, if you’re an economics major, wonder what incentives this might create.

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