Earlier this summer, in light of a dismal sexual assault audit conducted on schools across the nation, I wrote a column praising Senate Bill 967 — famously known as the “yes means yes” law. I praised it for defining sexual consent as an “affirmative, conscious and voluntary agreement” between parties involved through the verbal and non-verbal insinuation of consent. At the time, I applauded its language for including continuous consent, as well as affirmative consent. However, after this new law has been used to justify judicial rulings based on ambiguous proof, I’m here to debunk my original stance on this issue.
While the mass criticism regarding the negligence toward sexual assault reports by college administrators is justified, the implementation and due process involving SB 967 is problematic when it comes to the application of legally ambiguous consent to campus judicial review. This definition of consent violates individual rights to fair and just trials —better known as the Fifth Amendment.
SB 967’s fatal flaw in defining affirmative consent lies in categorizing any sexual act without a perceived verbal or non-verbal “yes” as sexual assault. However, this definition is out of touch with the reality of situations that call for consent. Both verbal and non-verbal expressions can be misunderstood in the process, leading to false accusations.
What it really boils down to is conflicting definitions of what consent really looks like, which is subjective to every sexual relationship.
This idea of continuous consent alongside affirmative consent becomes even more muddled in long-term relationships. While the bill states lengthier relationships aren’t considered as terms for consent, there is no way to create a blanket ruling that accurately defines what each couple considers consensual.
We saw this issue in a legal case earlier this year at Brandeis University. Six months after a gay couple ended their two-year relationship, one accused the other of sexual assault due to unwanted aggressive sexual activity in bed. While one detailed a sexual assault situation as its defined in SB 967, the accused said he had simply kissed his boyfriend while he was still sleeping.
Technically under SB 967, theses kissed become classified as sexual assault as the accuser wasn’t conscious to give affirmative consent. Regardless of his testimony, the accused was found guilty of sexual assault in front of a college judicial board and was given a disciplinary warning, alongside sexual-assault prevention training. This goes to show something as simple as the testimony of an angry ex can have detrimental consequences by abusing the language of the law.
Should this legally ambiguous system of testimonials become a staple for college judicial boards, it will shift the paradigm regarding burden of proof from the accuser to the accused. The reliance on he said/she said information shifts creates an atmosphere that leaves the accused appearing guilty until proven innocent, instead of the other way around.
In response to how an innocent person is supposed to prove they received consent under these circumstances, Assemblywoman who co-authored SB 967 Bonnie Lowenthal replied “Your guess is as good as mine.”
To further the problematic process, college judicial reviews deny those accused to a fair trial by denying them rights usually applied to civil cases such as impartial judges, unbiased juries, representation by counsel, and restrictions on unreliable evidence such as hearsay and prior crimes. Although some schools allow the attendance of independent lawyers, they are oftentimes not allowed to speak, therefore forcing students to defend themselves during hearings. A guilty ruling in a judicial board also requires a lower level of proof than federal courts. “Preponderance of evidence” is a process in which advisors can find someone guilty if they are 50.01 percent certain the accuser is telling the truth.
What we find in the wake of SB 967 is a scene on college campuses where everyone has the risk of being falsely labeled as a rapist without the fundamental rights to properly defend themselves.
Understandably, SB 967 is an extreme response to an ugly situation occurring on college campuses, but to declare students guilty of sexual assault without the due process reserved for civil cases can ruin educational, professional and personal lives. That’s a grave injustice.
Protection clauses are necessary to discern misunderstandings to prevent the criminalization of innocent victims to an otherwise ambiguous law. Sexual assault needs to be dismantled; however it can’t come with the cost of the integrity of our justice systems.
