'Yes Means Yes' Bill Headed to Governor's Desk

By Mirna Alfonso

(mirna.alfonso@patch.com) (Patch Staff)

Senate Bill 967, commonly known as the “Yes Means Yes” or “Affirmative Consent” bill, is intended to eliminate college date rapes by forcing all colleges and universities in California -- including community colleges -- to adopt protocols for complaints.

Schools must adopt the protocols in order to continue receiving state funding.

As the bill reads, both parties must give spoken consent; silence is not considered consent and any sex act must be consensual THROUGHOUT the act.

“‘Affirmative consent’ means affirmative, conscious, and voluntary agreement to engage in sexual activity,” the bill reads.

“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.”

According to the bill, “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.”

According to University of La Verne associate professor of Journalism Elizabeth Zwerling, staff and faculty are undertrained in dealing with sexual assault allegations and over the years, students’ rights have been trampled.

“In California, an audit of four public universities’ sexual assault policies during the 2013-14 academic year found the universities did not sufficiently train faculty and staff in responding to and reporting incidents of sexual assault,” she wrote.

“The four universities -- UC Berkeley, UC Los Angeles, Cal State Chico and San Diego State -- also fell short in their sexual assault prevention education programs for students, particularly incoming students, according to the California State Auditor’s report released in June” wrote Zwerling in an article she penned for Womensenews.org.

Zwerling described the case of a coed who was allegedly assaulted but was left out of the adjudication process; the alleged attacker was allowed to graduate early and she never faced him in court.

The alleged attacker had been found in violation of the “student code of conduct,” Zwerling wrote. He was never prosecuted as a sexual offender for that particular crime.

Under the bill’s provision, the schools would be required to provide policy statements on how they will deal with allegations, how they will treat the victims and how they will coordinate with law enforcement.

Zwerling also said the law, if passed, would put the burden of proof on the assailant, rather than on the victim -- by ensuring that each party would be aware by verbal or nonverbal communication that the sex act was consensual.

And the minute a complaint is made, the protocols are activated.

According to Wendy Murphy, adjunct professor at New England Law School and a former sex crimes prosecutor, victims are rarely informed of their rights and too many schools allow the cases to “time out” by dragging them on until graduation of one of both parties.

“Running out the clock” like this can be appealing to scandal-averse schools hoping to do nothing until the “problem” leaves campus by virtue of graduation. At that point, the school--and often the Office for Civil Rights--loses jurisdiction over the controversy,” Murphy wrote in an article inwenews.

State Sen. Kevin de Leon (D-Los Angeles), coauthor of the bill, has been quoted as saying that the “The ‘boys will be boys’ culture has predominated campus culture as well as administrative action.”

de Leon said he wants to change that.

Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, or FIRE, is worried that the new policies might be unfair to the accused.

“Under this standard, an accused student would be found responsible of a serious and heinous crime if the fact-finder concluded that there was a mere 50.01 percent likelihood the accusations were true,” Cohn was quoted in wenews.

According to Professor Loretta Rahmani, Dean of Student Affairs at the Unversity of La Verne and the school’s Title IX coordinator, the state is just trying to come into compliance with the federal government’s efforts to protect students.

“It is my understanding that the California government is mirroring Federal Laws to support the efforts for Sexual Violence Prevention on college campuses,“ she told Patch in an email.

An interesting component of the bill is that any costs associated with the state-mandated implementation of a new law would be reimbursed by the state to the school in question.