California has become the first state to pass a law clearly defining what it means to give sexual consent, tossing out the old “no means no” standard and replacing it with “yes means yes.”
The change is a necessary one for both victims and the accused; previous “no means no” cases of sexual assault have been unpredictable in outcome. Because consent in a sexual assault case has traditionally been difficult to prove or disprove, some innocent suspects have been given criminal sentences, and likewise some guilty people have gone free.
“Some states have a strict liability standard, which means that defendants simply cannot argue that they didn’t realize the victim was incapable of consent. In these states, if the victim was incapable of consenting, no amount of good faith belief in the victim’s consent will aid in a sexual assault defense,” states Find Law.
“Still other states allow defendants to make a claim of mistaken consent as long as the defendant did not act recklessly in overlooking evidence of the victim’s inability to consent. If the defendant did not act in a wildly irresponsible manner, they can claim an honest belief that the victim gave consent.”
The new California law takes the guess work out of knowing when a person has really given consent, though the new definition doesn’t make it any easier to prove or disprove consent was given.
Under the new “yes means yes” ruling, “affirmative consent” must be given by all parties involved, throughout the entire sexual encounter.
The law reads: “‘Affirmative consent’ means affirmative, conscious, and voluntary agreement to engage in sexual activity. 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. 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. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.”
Furthermore, the “yes means yes” law declares no person can be said to have given affirmative consent if they are under the influence of a substance, asleep, dressed suggestively, or acting recklessly.
In order to avoid criminal prosecution, anyone accused of sexual assault must demonstrate they took appropriate steps and gained affirmative consent or were not aware the other individual was unable to give such consent– meaning, if someone was under the influence of alcohol, the accused must prove he or she did not know alcohol was involved.
What does this mean for college assault cases?
The main application for the “yes means yes” law is at universities in California, and the legal document clearly states colleges receiving state funding must have assault policies for more than a dozen scenarios. These policies must cover everything from privacy of the victim, to coverage of available counseling services. Should a university not comply, the state can refuse to send any more financial aid.
More policies in place create a heightened awareness of sexual assault on college campuses. According to the latest statistics from the Department of Education, more than half of all colleges in the U.S. with more than 1000 students have had a reported forced sexual assault within the last year. In 2012, the year the most recent data is available, there were almost 4,000 forced sexual assaults on college campuses, a number that has increased 50 percent over a three-year period.
Individuals who are victims of sexual assault experience a wide range of psychological and emotional disorders, including shock, anxiety, depression, post-traumatic stress disorder or rape trauma syndrome, and other trauma-related mental health issues. Advocates for Human Rights indicates sexual assault victims are more likely to attempt or to commit suicide; 33 percent of women with a history of sexual abuse and 15 percent of women with a history of physical abuse showed signs of a psychiatric disorder. Only 6 percent of women without a history of abuse show signs of psychiatric problems.
What’s more, individuals who have been victims of sexual assault may furthermore suffer issues with personal relationships. A lack of trust and a fear of social settings can prevent many victims from holding a job or maintaining friendships.