I want to start off by being clear. “Yes Means Yes” is the standard that all people should use when having sex with other people. “No Means No” is antiquated and puts the responsibility on the victim to say no instead of putting the responsibility on all parties involved who want to have sex to make sure that all other parties involved also want to have sex. No means no implies that the absence of a no means consent is given. That is horrific. That allows for people like Cee Lo to say that unconscious people cannot be raped. Yes means yes implies that in the absence of a clear yes, it is rape.
So why do I have problems with the law? Well there are several issues.
1) Sex does not always simply involve two people.
This is the wording from the law:
An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity
Both parties implies only two. So the law is not specific enough to handle cases handled on college campuses. This is a relatively minor issue but it is one that was missed in the drafting of the law. It also shows that the people writing the law were ignoring reality because the idea that college sex is limited to only two people at a given time is frankly a silly one.
2) Rape happens on more places than just colleges.
Rape can happen anywhere, and by anyone. It can take place in high school. It can take place in the workplace. It can take place at your house. It can take place in a friends house. It can take place in a car. It can take place on a date. It can take place in a back alley (those are rarer than some might have you believe). So why draft a law setting a “Yes Means Yes” standard but only having that standard apply to colleges? That just doesn’t make any sense to me at all. A “Yes Means Yes” standard should be universal and apply to everyone, not just on colleges.
3) Government is abdicating its responsibility of punishing rapists.
This law is not setting forth any standards to be used by law enforcement or the courts to adapt an affirmative consent standard universally across the state of California. Instead it is pushing its responsibility to investigate and punish rapists onto college disciplinary boards. I doubt that all California colleges who are covered by this law are up to the task of determining the guilt or innocence of an individual. Are these panels made up of, or at least headed up by, judges who are adept at determining if someone committed an act of sexual violence? I do not have faith in that idea at all.
Parts of the law do contain requirements like protecting the anonymity of the accuser and other such measures that the university should be required to take in order to make the environment as safe as possible for victims after they come forward. I take no issue with this at all. However, since it is the job of government to punish rapists, it should not be passing that job off to college administrations. Do you want some community college board determining if you committed an act of violence against another? I sure would not.
4) The burden of proof is too low.
In setting the standards in this law, California has set:
A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
Since government is abdicating its responsibility it is also taking away a measure of due process from the accused. California is basically saying “hey, we do not do a good enough of a job punishing people who rape, so lets get our numbers up by making colleges do our work for us and while we are at it lets make it easier for them to punish people accused of crimes than it is for us”. Proving beyond reasonable doubt is a GOOD standard to have in criminal cases. It puts the burden on the state to prove that a crime has taken place It makes it less likely for a mistake to have been made. Just like the mistake that was made with Caleb Warner.
5) This is just about money.
The law requires universities to do all this to get state funding. The punishment for noncompliance is no state money. Each section starts with:
In order to receive state funds…
An issue as serious as rape shouldn’t be tied to if a school gets money or not.
Rape on college is a big deal and a big problem. We do need to look at all the ways that we can educate people that rape will not be tolerated, on how to best step in to help others who might become a victim, and how to best deal with rape charges when they do come forward. To me, the governmental abdication of responsibility and a lowered burden of proof is not the way to accomplish these goals.