Thursday, October 9, 2014

Yes Means Yes law by Justin Steele

            California Governor Jerry Brown signed  into law  the Yes Means Yes law the other day, which requires universities within the state to have protocols defining affirmative consent for sexual activities between students.  The goal, obviously, is to make it a little easier for the victims of sexual assault to prove that they did not consent to the advances of their alleged attacker.  By having a law that requires explicit and continuing consent throughout whatever sexual activities occur, the legislature created an environment where the victim won’t be blamed for their silence.   What is interesting to me about the law is that in clause (b)(7) we have a requirement for the university to provide a written statement to law enforcement concerning the alleged assault.   I am certainly not a criminal law expert, however, it would seem to me that the most logical course of action for both the victim and the university is to immediately report the sexual assault to law enforcement.  How did a university’s college disciplinary committee become the go-to authority when a crime has occurred?
            Surprising to no one, there have been some critiques of the new law, which essentially boil down to the idea that if you have to ask for permission it’s not fun.  While I think those arguments are weak, I think universities may have a problem with the clause which requires the disciplinary committees to look at the assault from the lower preponderance of the evidence standard.  In criminal trials the required standard is a showing that the accused committed the crime beyond a reasonable doubt.  I find it interesting that when a quasi-judicial body is involved there is a lower standard despite the fact that being expelled and labeled as a rapist can affect a person’s life for ever.  I am assuming that will be the argument made when this law gets a constitutional challenge.  The state will argue that it’s okay for the school to have a lower standard because it’s not an actual criminal trial and would hardly meet the requirements of a formal adjudication.  Which brings us back to the question I asked earlier, how did a college disciplinary committee become the go-to authority when a crime has occurred?
            The truth is, I have no idea.  I imagine that it became common for women who have been sexually assaulted to go to campus police.  Campus police retained the information and presented the sexual assault report to the university.  The university created a committee to handle the sexual assault and keep it quiet.  Meanwhile, the victim decided to go along with it because she forgot that a criminal conviction is much more serious than an expulsion from a university.  Regardless of any Yes Means Yes laws or No Means No laws, a victim should report to the police.

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