California adopts ‘yes means yes’ sex-assault rule

SACRAMENTO, California – California Gov. Jerry Brown announced Sunday that he has signed a bill that makes California the first in the U.S. to define when “yes means yes” and adopt requirements for colleges to follow when investigating sexual assault reports.
State lawmakers last month approved the measure, as states and universities across the U.S. are under pressure to change how they handle rape allegations. Campus sexual assault victims and women’s advocacy groups delivered petitions to Brown’s office on Sept. 16 urging him to sign the bill.
De Leon has said the legislation will begin a paradigm shift in how college campuses in California prevent and investigate sexual assaults. Rather than using the refrain “no means no,” the definition of consent under the bill requires “an affirmative, conscious and voluntary agreement to engage in sexual activity.”
“With one in five women on college campuses experiencing sexual assault, it is high time the conversation regarding sexual assault be shifted to one of prevention, justice, and healing,” de Leon said in lobbying Brown for his signature.
The legislation says silence or lack of resistance does not constitute consent. Under the bill, someone who is drunk, drugged, unconscious or asleep cannot grant consent.

newsinfo.inquirer.net...

one immediately has to ask the question, is this only for females or males as well? in other words if a male and female are both at a party are drunk, and have sex will they both be penalized equally? or like an awful lot of laws like the bulk of anti-discrimination laws only apply to one side? like in this case.

The student, identified only as "John Doe," had sex with his accuser on September 8th, 2013, according to details of the case obtained by the Foundation for Individual Rights in Education. Both Doe and his accuser had been drinking. By several accounts, the sex was consensual. The accuser sent Doe a text message beforehand asking him if he had a condom. She also texted a friend and clearly announced her intention to have sex with Doe.

After that night, the accuser spoke with several Occidental employees, including Danielle Dirks, an assistant professor of sociology. Dirks told the accuser that Doe "fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports team], and was 'from a good family.'"

A week later, the accuser filed a sexual assault report against Doe.

The Los Angeles Police Department determined that both parties had consented to sex and decided not to charge Doe:

"Witnesses were interviewed and agreed that the victim and suspect were both drunk, however, that they were both willing participants exercising bad judgment …. It would be reasonable for [Doe] to conclude based on their communications and [the accuser’s] actions that, even though she was intoxicated, she could still exercise reasonable judgment."

Occidental College, however, is under pressure to be seen as doing something about sexual assault on campus given the federal investigation into its rape prevention practices, so the college hired attorney Marilou Mirkovich to investigate the matter. Mirkovich concluded that the female student did indeed consent to sex. However, since she was intoxicated, her consent was invalid, according to Mirkovich.

This is a flawed interpretation of Occidental's own policy on consent, which requires students be not merely drunk but actively incapacitated for rape to have occurred, according to FIRE Vice President Robert Shibley.

Indeed, Mirkovich's interpretation makes no sense. If all drunken sex is rape, then Doe and his accuser are both guilty.

"Both parties would be guilty of sexually assaulting one another," Shibley told me in a phone interview.

Occidental is only holding Doe responsible, however. He was found guilty and expelled.

The college denied Doe's appeal. He has since filed a lawsuit against the college and reached out to FIRE for help. FIRE sent Occidental a letter outlining the group's concerns that Doe's due process rights were severely violated.

"Right now we are waiting from a response from Occidental," said Shibley.

reason.com...

i know from the original story on this case i saw there were a lot of comments about the sexual discrimination involved in this case. like if she because she was drunk could not give consent would that not mean that he being just as drunk was also incapable of consent. so why was only he expelled and not her as well? after all if he raped her because she was not able to give consent due to being drunk, then she equally is just as guilty of raping him for the same reason. yet now California seems to be making this sexual discrimination law? and yes if it does not apply to ALL students equally male or female or sexual orientation than this law IS discrimination.

a reply to: generik

Two words:
DOUBLE STANDARD.

I'm all for requiring an affirmative "yes". But, they took it to far when they included "Someone drunk cannot give an affirmative "yes"". These lawmakers, especially in California, are completely ignorant of reality.

Looks like more slave labor filtered through the prison industrial plantation system. Machines can't lay the highway down yet.

Just think of all the innocent men that will now be considered rapists for the rest of their lives.

I believe some change is needed. This does nothing but make the real predators harder to see. A predator loves its camo

How drunk is drunk. Do they need a breathalyzer reading now as well, perhaps a drug screening test as well or perhaps a notarized contract with terms and conditions.

Such laws must work both ways but they never have!

If you go to a party and do not want to have drunk sex then clearly, don't get drunk. If you make a dumb decision while drunk, then have the guts to take responsibility for your own conduct rather than blaming others.

Guys do end up making bad choices when drunk and many a girl has got what she wanted and planned for. There are victims on both sides.

P

This is a very difficult law to judge - affirmative consent should be required but as has been said, this basically requires a toxicological screening before sex to ensure legality. (Eta, by hard to judge I mean that unless we assume there will be convictions without sufficient evidence the law is unenforceable precisely because there will almost never be irrefutable evidence that a person was legally intoxicated - why do you think a DUI stop is such a long and complicated affair even for trained professionals- but now drunk college kids are gonna eyeball who is legally intoxicated? )

I do not however attribute this simply to a "feminist agenda" (which i suspect we will hear about from a paranoid and chauvanistic viewpoint before the thread is over- there is one of course and like any movement it has its zealots but for the most part I consider it a benign social necessity) or even to a conspiracy to make everyone guilty of something (which does seem to exist on some level in America). I think it goes deeper. I think this serves to further our isolation from eachother. Sadly, promiscuity is one of the last bastions of real world social exchange in America - it's easier to have sex with a stranger than to have a meaningful conversation with one unless you meet in some organized venue that brings like minded people together. Free love is probably the only thing left over from the 60s that could still be used to rekindle that fire in the underground, and they've finally found a socially acceptable way to criminalize it.

Of course there is one fairly solid way around this law - only have sex with people you trust (hows that for a novel idea?).

Cultivating the intent to have sex over at least two or three separate interactions is probably a good idea anyway and does not preclude the use of free love as a means of relating and even social organization - if anything it strengthens the potency of sex as a social tool since it requires you to actually be able to find eachother again and tolerate interaction beyond sex with one another. On a more down to Earth level it also makes the activity less risky in a number of ways and is a lot less of a mood killer than "pee in this cup, then sign here and initial here".

On the positive side, if somebody takes offense to being asked to blow, you can now credibly claim that you only meant a breathalyzer test.

a reply to: The Vagabond

On the positive side, if somebody takes offense to being asked to blow, you can now credibly claim that you only meant a breathalyzer test.

Will this create a whole swath of new pickup lines.

Would you like to blow for me?
No, get lossed
I guess that sex is out of the question then?

P

originally posted by: smithjustinb
I'm all for requiring an affirmative "yes". But, they took it to far when they included "Someone drunk cannot give an affirmative "yes"". These lawmakers, especially in California, are completely ignorant of reality.

How are you supposed to know? Do I have to administer a tox screen prior to sex?

eta: whoops - should have read a few more posts. To add, what if she's unable to consent for other 'reasons'? Maybe she had a bad hair day. Or had a head injury. Maybe she's bipolar and on a manic swing. Can I be arrested when she becomes depressed and decides it was rape after the fact?

originally posted by: Bedlam

originally posted by: smithjustinb
I'm all for requiring an affirmative "yes". But, they took it to far when they included "Someone drunk cannot give an affirmative "yes"". These lawmakers, especially in California, are completely ignorant of reality.

How are you supposed to know? Do I have to administer a tox screen prior to sex?

eta: whoops - should have read a few more posts. To add, what if she's unable to consent for other 'reasons'? Maybe she had a bad hair day. Or had a head injury. Maybe she's bipolar and on a manic swing. Can I be arrested when she becomes depressed and decides it was rape after the fact?

Hellen Keller would have been effectively not allowed to reproduce due to this law.

a reply to: smithjustinb

Technically she could, if she physically took the initiative in it and the man said yes, but she'd probably have to do something that would constitute assault if her advances were unwelcome.

a reply to: generik

Welcome to America where Black people can not be racist and regret becomes rape. It delegitimizes real rape cases.

Guy's should be careful about the type of girl's their trying to get intimate with, if you don't know her, you shouldn't be sleeping with her. By sleeping with her you're opening the door's of being accused of this and that.

Keep your pants on. Stop sleeping around.

So they're gonna make it illegal for two adults to have sex when under the influence? Or: FWI

I can see it now: Cops enter someones home with tactical military weapons drawn. Pulls the law breakers apart, then gives a fields sobriety test right there in the bedroom!

What has happened to our country? Yes means yes and no means no. And certainly, no real man would try and have sex with a female who is obviously too drunk or whatever.

originally posted by: SearchLightsInc
Guy's should be careful about the type of girl's their trying to get intimate with, if you don't know her, you shouldn't be sleeping with her. By sleeping with her you're opening the door's of being accused of this and that.

Keep your pants on. Stop sleeping around.

PEOPLE should be careful about the type of PERSON their trying to get intimate with, if you don't know THEM, you shouldn't be sleeping with THEM. By sleeping with THEM you're opening the door's of being accused of this and that.

Keep your CLOTHES on. Stop sleeping around.

Fixed it for you. It was a little too gender biased for me.

a reply to: SearchLightsInc
Why???? If women have the right to act irresponsibly yet not be blamed for rape which is a crime then so do men. They have the right to have consensual sex with women and not be falsely accused of rape.
If women aren't expected to be careful then why should men????
If first is considered blaming the victim, what is the second???

This law is an abomination, as Gordon Finley, an adviser to the National Coalition for Men, wrote in an editorial which said, it assumes the GUILT of the accused, instead of presuming innocence until the proof of guilt.

This could lead to more real rapes and less real sex. There are some out there that could be pushed into the criminal system and then just go with it from that point because of the feeling of nothing left to loose.

originally posted by: BMorris
This law is an abomination, as Gordon Finley, an adviser to the National Coalition for Men, wrote in an editorial which said, it assumes the GUILT of the accused, instead of presuming innocence until the proof of guilt.

Yup.

There's no actual way for anybody to prove this 'consent' occurred when drunk. It'll just still devolve into he said/she said and guess who will still get charged with rape?

Not the girl that's for sure. This law doesn't actually change anything, but create more scenarios where regret = rape.

~Tenth

a reply to: BMorris
Men lost that right long ago due to man hating feminists and large percentage of emotionally weak men who are ready to play hero everytime women cry hurt....