October 9, 2014 By Stephen Klarich
Jerry Brown signed SB-967 into law
California Governor Jerry Brown

On Sept. 28, California Gov. Jerry Brown signed SB-967 into law, marking a new approach to sexual assault cases that happen on state-funded college campuses. There are many changes under the law, such as comprehensive prevention programs and sexual assault response policies and protocols that focus on helping victims get help.

However, one new aspect of the law could make life overly difficult for those accused of sexual assault, regardless of whether they actually committed a wrongful act. Under the new law, which amends California Education Code section 67386, the California State University and University of California programs, and other college campuses that receive state funding must also enact new policies that introduce an “affirmative consent” standard in all disciplinary hearings related to sexual misconduct.

Redefining Consent: Yes Means Yes

What does it mean to have an affirmative consent standard? First, here is what the law says:

“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.” 1

This paragraph basically means that in university sexual assault disciplinary hearings, the responsibility is shifted to the accused to prove that their partner gave them permission to engage in sex for the entire duration of the activity. Before this law, the accuser had to prove that they did not give consent. This means that if you are a college student in California, you need to seek a clear “yes” – which some campuses have defined as verbally or in the form of a nod or smile – from your partner before and during sex.

In other words, the standard is no longer “no means no,” where consent is assumed unless the other person says no. It is now “yes means yes,” where consent cannot be assumed at any time.

A Small Shift with Large Consequences

With this new standard, it is possible that a whole range of sexual activity that had been acceptable before will now be considered sexual assault. Critics of the bill say that to avoid being accused, sexually active students might be forced to document the consent of their partners. 2

Affirmative consent can be removed at any time.
It is important to know that affirmative consent can be revoked at any time.

Additionally, the new law forces schools to apply a “preponderance of evidence” standard in disciplinary hearings, which means that the accused could be disciplined if the tribunal determines that there is enough evidence to show that the accused more likely than not committed the act. This is lower than the “beyond reasonable doubt” standard of criminal trials, which requires that the tribunal find that no reasonable person could doubt that the accused committed the act. 3

Unlike in a civil or criminal court, this lower standard does not come with many of the protections the court system provides someone accused of a crime, such as mandatory exchanges of evidence between the accused and the accuser, and rules of evidence that do not allow prior bad acts to be used against the accused. Even so, the consequences of a hearing can be just as life altering, including suspension or expulsion from school.

Call Wallin & Klarich if You are Accused of Sexual Assault

If you are a student who has been accused of sexual assault, you have an uphill battle on your hands, and continuing your education could depend upon choosing an experienced and aggressive attorney. Wallin & Klarich has been successfully defending people accused of such crimes for over 30 years. Contact us today for a free, no obligation consultation and let us help you, too.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in sexual assault and rape laws near you no matter where you go to school or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.

1. [Cal. Ed. Code § 67386(a)(1), as amended by SB 967, available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967. In February 2014, the University of California adopted this language into its policy on sexual harassment and sexual violence, available at http://policy.ucop.edu/doc/4000385/SHSV.]
2. [http://www.cnn.com/2014/09/03/living/affirmative-consent-school-policy/]
3. [Cal. Ed. Code § 67386(a)(3), as amended by SB 967, available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967. ]

1 comment

  1. Pingback: “Yes Means Yes:” Will California High Schools Teach Affirmative Consent in the Classroom? - Southern California Defense Blog

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