On September 28, 2014, California Governor Jerry Brown announced that he had signed SB967, the so-called “Yes Means Yes” bill into law, effectively changing the definition of “consent” for sexual partners on California campuses. In stark contrast to the standard from which the well-known anti-rape campaign slogan, “no means no,” started, the new law imposes a higher threshold on what constitutes consent. Namely, consent must be an affirmative, conscious, and voluntary agreement to engage in sexual activity.
The new law is the first of its kind in the nation and applies to all California colleges and universities receiving state funds for student financial aid, including community colleges, the state university systems, and independent postsecondary institutions. The new law accomplishes this change by making the receipt of state funds for student financial assistance dependent on the school’s adoption of “detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards.” Colleges must adopt the new affirmative consent standard when determining whether the complainant gave consent. The law also requires colleges to adopt preventive policies concerning sexual assault, domestic violence, dating violence, and stalking.
What is Consent?
The new law defines consent as an affirmative, conscious, and voluntary agreement to engage in sex. In addition, the law explains which actions or statements do not constitute consent. The law states:
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. (Education Code § 67386(a)(1).)
The law affects nearly every California-based student. Accordingly, higher education administrators should immediately review and reevaluate their institutions’ current policies to ensure that they are in full compliance with the new law.
How to Implement a “Yes Means Yes” Policy
The most critical points to remember when implementing a legally compliant “Yes Means Yes” policy include the following:
- Train personnel on what constitutes consent and update protocols on handling complaints of sexual assault. Given the law’s new consent standard, colleges should train their personnel on the definition of consent, with examples of what constitutes an affirmative “yes.” Higher education institutions should train personnel on specific questions to ask a complainant during an investigation and on how to determine when a sexual assault has occurred.
- Train personnel on what is not consent. The law not only defines consent, but it also addresses what is not consent. Namely, according to the law, a complainant’s lack of protest, lack of resistance, or silence does not constitute consent. (Education Code § 67386(a)(1).) Therefore, investigators should not consider these factors when determining whether consent existed in a given situation.
- Train personnel on what is not an excuse for lack of consent. Under the new law, the following scenarios do not constitute an excuse for lack of consent: (1) the accused believed that consent existed because he or she was intoxicated or reckless; and (2) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented. (Education Code § 67386(a)(2).) College administrators should make clear that intoxication or failure to take steps to ascertain whether the partner consents are not valid excuses when determining disciplinary measures.
- Train personnel on what is not an excuse for the accused’s believing that consent had been given. It is not a valid excuse for the accused to believe one consented if the accused knew or should have known that the complainant was (1) asleep or unconscious; (2) incapacitated due to drugs, alcohol, or medication, and could not understand the fact, nature, or extent of the sexual activity; or (3) unable to communicate due to a mental or physical condition.
- Ensure that investigators employ the preponderance of evidence standard. When investigating an allegation of sexual assault, the standard of proof is a preponderance of evidence. Therefore, in order to determine whether a sexual assault occurred, the investigator must evaluate whether, after weighing all the evidence, it is more likely than not that the sexual assault took place.
- Educate the student body on what constitutes consent and on what constitutes an excuse for lack of consent. Colleges should not only ensure proper training procedures, but also take steps to inform the student body about the requirements of the new law. Colleges should advise their students that rather than wait for a partner to say “no,” one should seek an explicit “yes.” According to the law, consent may be expressed with nonverbal cues, however the cues must be unambiguous and ongoing.
- Make resources on the new law available to students and staff. Colleges should make resources on what constitutes sexual assault available to students and staff. In addition, colleges should make resources available on the steps a student can take if she or he believes him or herself to have been a victim of sexual assault.
- Recognize that the new law is more than “Yes Means Yes.” Colleges should respect that the new law is extensive and will require in depth understanding. The new law’s implications do not stop at the definition of “consent.” Rather it requires colleges to maintain policies and protocols covering 13 other related areas. (Education Code § 67386(b).) It also requires colleges to conduct outreach programming during student orientation and affects college agreements and relationships with other entities affiliated with colleges. (Education Code 67386(c)-(e).)
For more information about how to maintain and develop legally compliant “Yes Means Yes” policies and on how to address sexual assault issues, please contact the Ogletree Deakins attorney with whom you normally work or a member of the Higher Education Practice Group.