By Jason KUROSU

The California State Senate unanimously passed SB 967 last week, a bill which, if signed by Gov. Jerry Brown this September, will make significant changes to the nature of sexual assault investigations at California college campuses.

Dubbed the “Yes Means Yes” bill, the legislation would redefine what constitutes rape, as well as emphasize affirmative consent when campuses determine whether sex was consensual or not. Under the provisions of the bill, silence, lack of protest or resistance or past relations would not signify that consent was given. The bill also does not allow for consent in any case of incapacitation due to drugs and/or alcohol, nor can consent be assumed if “the complainant was asleep or unconscious” or “the complainant was unable to communicate due to a mental or physical condition.”

Investigations into alleged sexual assaults would be conducted with this baseline of affirmative consent in mind, a standard already in use at many California campuses. Should the bill be signed into law, affirmative consent would become a statewide standard. Punishments for violators would still be determined by each campus on an individual basis.

Prevention and outreach programs would also be part of the required efforts of college campuses, including outreach programming during first year student orientation and working with community organizations and rape crisis centers.

Without the creation and implementation of such sexual assault policies, the campuses would not be eligible to receive student financial assistance from the state.

Denice Labertew, director of Advocacy Services with the California Coalition Against Sexual Assault (CALCASA), said that the signing of SB 967 “would require campuses to adopt sexual assault policies that are victim centered, including an affirmative consent standard.”

At the announcement of the bill’s release, co-author of the bill, Assemblymember Bonnie Lowenthal said, “Nationally, sexual assault on campus remains the most drastically under-reported crime. Ten times more rapes are reported to crisis lines than are reported to police. But nearly half of the women who are raped tell no one, leaving them without support services of any kind. We need to change the way we look at sexual assault and how we talk about it.

“California cannot expect our students to get an education while also dealing with the fear, the trauma and the disadvantage related to sexual assault. California deserves better; our students deserve better.”

Senator Kevin De Leon, one of the senators who introduced the bill, called for a “cultural shift” in order for the general public to take sexual assault more seriously.

“We have a culture that stigmatizes survivors, not the perpetrators. That needs to change. Men need to change their behavior because by and large men, young men and teenage boys are the perpetrators of these sexually violent crimes on campus.”

De Leon called for this shift not only in men, but in the campus system.

“The measure will change the equation so the system is not stacked against the survivors. It will make very clear that ‘no means no.’ There is no ambiguity, no vagueness to this question and only yes means yes in this affirmative consent policy.”

Opponents believe that affirmative consent policies would place an undue burden of proof on the accused to prove that consent was given.

Gordon Finley, a professor emeritus of psychology at Florida International University and an adviser to the National Coalition for Men (NCFM), said, “The consequences of Gov. Brown signing SB 967 would be horrific for California’s sons. Under SB 967, it is virtually impossible to ‘prove’ affirmative consent for a man.  Men are presumed guilty and have to prove their innocence under SB 967 as opposed to the criminal justice system in which men and women are presumed innocent and must be proven guilty.”

An opinion editorial piece published in the Santa Barbara Independent in August by Finley and fellow NCFM adviser Dianna Thompson said that affirmative consent policies would lead to an increase in false rape accusations and, subsequently, lawsuits and reduced male attendance at college campuses.

Gov. Brown has until Sept. 30 to sign the bill into law. As of this May, 55 U.S. colleges and universities are under investigation by the U.S. Dept. of Education’s Office for Civil Rights for their handling of sexual assault complaints, including three schools in California.

  Jason Kurosu