‘Yes Means Yes’ – A Change For Good?

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It seems fairly straightforward that you should only be having sex with people when you actually want to. You would think that consent really is a minimum requirement and California has introduced a new law to enforce this message.

This law is an attempt to counter the alarming figures of sexual assault in colleges: for example, according to the US Department of Justice one in five women are the victim of attempted or completed sexual assault while at college. This new Bill dictates the way in which California universities handle rape cases internally, rather than changing the criminal liability of the accused.

Bill SB 967, also known as the ‘yes means yes’ law, goes beyond the idea that you have to stop if your partner says no. Instead the focus is on active consent.  This seems like an incredibly positive move away from any presumption that a person is ‘up for it’ unless they directly tell you otherwise. Moreover, the law changes the burden of proof to reflect the lower standard of proof used in civil cases rather than the ‘beyond reasonable doubt’ standard used in criminal court. This change is intended to make it easier for victims to ensure their attackers are punished since it is now more likely that the guilty will indeed be found guilty by their college.

At first glance this new law seems like a good step towards dealing with rape cases more effectively. The focus on making sure both partners actually want to have sex with one another seems sensible, if somewhat obvious.

However, many complaints have been raised against the introduction of this Bill. For one thing, some critics say that this change doesn’t really seem to make any real difference to the ‘he said, she said’ issue. It is just as easy to claim that the other person is lying as it ever was under the ‘no means no’ approach. Are we left having to document all of the sex we have to ensure there is proof of consent?

In answer to this it seems necessary to point out that all sexual assault cases are going to require some level of judging who is telling the truth. As Rachel Van Cleave, dean of Golden Gate University School of Law, said:  “[Rape] always will come down to that” when there are only two people involved in what is a private moment. This does not mean you have to record all sexual encounters you have to prove it was consensual. The only cases in which this law comes into play are those which have been reported as assault. As long as you and your partner are happy there shouldn’t be any issue.

Image by Harriet Norman-Reade, WSA illustrator,
Image by Harriet Norman-Reade, WSA illustrator,

The criticism of the Bill that seems most bizarre to me are claims that it is impractical and misunderstands the nature of sexual encounters.  It is unclear to me how, in the instance of both people showing enthusiasm, this would ruin their experience. If anything, this bill simply makes communication vital –  which can arguably only lead to better sex. If you see making sure your sexual partner is comfortable with what is happening as ‘impractical’, then there is something fundamentally wrong. I’m not saying you should constantly stop mid-passionate moment to ask “is this OK?” because that would be a mood killer, but we read body language all of the time so why should this be so different? If your partner is not engaging at all – or worse, crying – then something is probably not right. It’s in a case like this where the new bill will hopefully encourage better communication. Making sure everyone is happy can only be a good thing, right?

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Discussion1 Comment

  1. avatar

    I applaud the ‘yes means yes’ part of the law, but I cannot endorse lowering of the criminal standard of proof. I understand that this means that some guilty people may escape justice, which is terrible, but Blackstone’s ratio – ‘It is better that ten guilty persons escape than that one innocent suffer’ – must remain inviolate

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