California recently passed the “Yes Means Yes” law, which defines sexual consent for college campuses, requiring “affirmative, conscious and voluntary agreement to engage in sexual activity.” In other words, both parties must consent verbally or otherwise to the sexual activity before it occurs. The law ignores any history of past relationships, meaning that parties in relationships — even marriages — cannot assume consent any more than can parties who have just met. And however healthy the intentions, this law places what we consider a dangerous burden of proof on those accused of sexual misconduct.
The law states, “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 [if]… the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.” Essentially, this requires the accused to prove that they took proper steps to ensure that affirmative consent was met. In the United States, the accused is generally considered “innocent until proven guilty,” and we believe the wording of the law leaves leeway for a “guilty until proven innocent” dynamic, which is inherently dangerous.
The Editorial Board also agrees that the definition of positive consent was rather ambiguous. The law states that while “lack of protest resistance does not mean consent, nor does silence mean consent.” We believe that the law’s intention of moving the definition of consent in the direction of the affirmative is important and a step in the right direction. However, the law’s definition of affirmative consent is ambiguous — for instance, if silence does not mean consent, does that mean affirmative consent must come verbally? The nature of rape and rape accusations is that they are often ambiguous; nonetheless, in order for something as important as this to be put into law, the language must be tighter than it currently is.
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