By TULSI BHATT
On September 28, Governor Jerry Brown signed the “Yes means yes” bill into law in California. The law advocates for stricter and more specific consent standards. Although no changes have been made regarding the criminal liability of any student charged with sexual assault, the new law dictates how claims will be handled within state-funded California schools, which now have to follow a set of procedures to determine whether a relation is clearly consensual.
The “Yes means yes” law is named as such to differ itself from the traditional sexual assault case approach, in which the victim is asked whether he or she had ever said “no” to the assailant during the encounter. Many have criticized this approach, as it often leads to cases being dismissed because the word “no” did not leave the victim’s lips. The “Yes means yes” law argues that a lack of protest or resistance does not equate to consent and that silence of the victim is neither resisting nor consenting Therefore only a definite “yes” is can be considered consent. Jissa Vennat (Sr.) said that “the problem with ‘no means no’ is that the responsibility to prevent sexual assault is placed on the victim. It’s the responsibility of each partner to gain consent.”
According to the Huffington Post, the new law has been received positively by many students, including those at Harvard University where the students are petitioning the law to be included in the school’s official policy. In light of both Harvard College and Harvard Law School being under investigation for mishandled sexual violence cases, students’ positive reactions should indicate to the school that the legislation should be implemented. Other legislatures have also followed suit in the “Yes means yes” laws, as New York and Chicago begin the process of implementation within schools. So far, New York Governor Andrew Cuomo has instituted affirmative consent, a conscious and voluntary agreement to engage in sexual activity every step of the way, at all State University of New York campuses. Chicago is also moving forward as its city council begins to ordinate a similar law.
Whether or not these laws will help sexual assault victims is still unclear. While the assumption is that everyone is an advocate for the safety of students and consensual sexual relations, it is not that simple, in reality. The new laws shift the burden of proof from the victim to the alleged rapist, and either way one will receive different versions of the story. The new laws simply state what the rest of us, as moral human beings, should really know: when people say with their mouths or with their body language that they do not want something, they do not want it. Denise Zhou (Sr.) said “people seem to think there’s a gray area around rape or sexual assault and perpetuating this idea only leaves more room for victims to reap the blame.” The new California law also does not change any of the punishments, so frankly it is mostly useless, as it does not provide any more protection for students or deterrent for perpetrators than before. Simply put, the law is trying to enlarge the Band-Aid that covers the already bleeding cut, rather than preventing the cut from happening.
The law is already fraying on the sides. Within it are rules on what dictates “affirmative consent”, which in this case means that consent must be received at every stage of sexual advancement, a situation that seems highly unlikely to happen. The context of affirmative consent in the law suggests that rape happens because someone simply forgot to say yes and that rape is a miscommunication between the two people. But, in reality, a majority of the assailants know exactly what they are doing. If they are able to legally have relations with an unwilling partner, they will lie and forge some sign of consent from the sexually assaulted.
Although these laws are a step in the right direction, they simply cannot provide the necessary justice needed to protect sexual assault victims. Hopefully, legislatures can explore other alternatives and find a better solution soon.