After several weeks of waiting, California Gov. Jerry Brown has signed into law a controversial measure that requires every university in the state receiving state financial aid to adopt a new definition of sexual assault.
Under criminal law, rape and sexual assault occur when one person forces another into sex despite the denial of consent, a standard commonly referred to as “no means no.” The new California standard, however, is one commonly referred to as “only yes means yes.” Under this standard, a sex act can only be presumed as consensual if both participants have explicitly consented. Even if no overt objections are raised at the time, if no explicit consent is obtained a sexual encounter may be defined as rape.
The standard is not a foreign one to Californians, as both the California State University and University of California systems have adopted similar standards in the past few years. Now, however, the same standard will be used in every school that accepts state financial aid, public or private.
Activists claim the law is needed to protect women on campus, one in five of whom are alleged to suffer some form of sexual assault before leaving school. The new standard is also hoped to counter a public perception that an assault must be violent in nature to be considered rape.
Opponents, meanwhile, argue the law is a well-intentioned but misguided overreaction.
Joe Cohn, the legislative and policy director for the Foundation for Individual Rights in Education, a campus civil liberties group, said the law would only hurt the state’s students.
“With the passage of SB967, there’s not question that it’s a real setback for student’s rights,” Cohn told The Daily Caller News Foundation.
Cohn predicted that the standard would quickly lead to lawsuits from students who claim they were wrongly expelled under the new standard.
“I would be surprised if it didn’t spur additional litigation, because a lot is at stake,” he said. “I don’t think this bill will make anyone safer on campus.”
Cohn said the law could end up shifting the burden for individuals accused of sexual assault, forcing them to effectively “prove their innocence” by having to demonstrate that consent was obtained to avoid a conviction before a campus tribunal. He also argued that the law unnecessarily criminalizes certain behaviors, such as those who accidentally initiate unwanted sexual activity in the context of a long-term relationship. Even if they are asked to stop and do so immediately, he said, the new law defines such individuals as having committed sexual assault.
Defenders of the bill have argued that the new standard is necessary to protect individuals who feel threatened with violence or who are incapacitated by drugs. However, Cohn says the law already protects such individuals, as those who are incapacitated or credibly threatened with violence are legally incapable of consenting to sex.
The fact that California has only changed university regulations rather than the state criminal code is an indicator of how radical the new standard is, Cohn argued.
“It would be a much harder task for legislators to convince the general public that they should live under these rules.”
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