California Passes "Yes Means Yes" Law Requiring California Colleges to Adopt an Affirmative Consent Standard and Other Policies to Combat Sexual Assault

Category: Education Matters
Date: Nov 3, 2014 04:35 PM

SB 967, commonly referred to as the "Yes Means Yes" law, was signed into law by the Governor.  The law requires governing boards of community college districts and the governing bodies for the California State University, the University of California, and independent postsecondary institutions to adopt policies regarding sexual assault, domestic violence, dating violence, and stalking, and include in those policies certain provisions to receive state funds for student financial assistance.

These policies must include an affirmative consent standard for determining whether both parties consented to sexual activity.  Affirmative consent must be defined as affirmative, conscious, and voluntary agreement to engage in sexual activity, and each person involved in the sexual activity is to be responsible for ensuring that he or she has the affirmative consent of others.  Thus, lack of protest or silence does not mean consent—whereas consent might be determined to exist in those cases under a "No Means No" standard.  Additionally, the policy must specify that affirmative consent must be ongoing and may be revoked at any time.

The law also requires that adopted policies not excuse an alleged lack of affirmative consent where the accused's belief that the complainant consented arose from intoxication or recklessness.  Such a belief is also not an excuse where the accused did not take reasonable steps to ascertain affirmative consent under the circumstances.  The policy must also provide that the accused's belief in the existence of affirmative consent is not a valid excuse where the accused knew, or reasonably should have known, that the complainant was unable to consent under certain circumstances.

Previously, the standards used in student discipline hearings by colleges and universities have not been uniform.  Under SB 967, adopted policies must use a preponderance of the evidence standard (i.e., more likely than not to be true) in determining whether the elements of the complaint against the accused have been demonstrated.

SB 967 also requires colleges and universities to adopt detailed and victim-centered policies and procedures regarding sexual assault, domestic violence, dating violence, and stalking that comport with best practices and current professional standards.  (The law also specifies the minimum topics that must be covered in these policies and protocols.)  The law also requires colleges and universities to enter into agreements or collaborative partnerships with existing organizations to refer students for assistance or make services available to students.

Finally, the law requires that colleges and universities implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking.  Institutions must include outreach efforts in every incoming student's orientation, and must also generally make students aware of the institution's policies, including the practical implications of the affirmative consent standard and the rights and responsibilities of students under the policy.

This law comes during a time when there is a lot of attention on what some consider an epidemic of campus sexual assault.  A 2007 study prepared for the U.S. Department of Justice found that one in five women experienced an attempted or completed sexual assault while in college.  Earlier this year, the U.S. Department of Education began investigating at least 55 colleges and universities nationwide for mishandling claims of sexual abuse.  California is the first state to adopt a statewide standard, but some institutions already had affirmative consent standards in place.  The California State University system updated its policies before the bill was signed into law, and some reports indicate that over 800 colleges and universities nationwide now use some type of affirmative consent definition in their sexual assault policies.

Community college districts must revise and adopt their policies to conform to the requirements of SB 967.  Districts should also prepare to apply for reimbursement for compliance with this law through the Commission on State Mandates

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