The new California statute regarding sexual assault on college campuses, which is known as the Yes Means Yes law, has received considerable attention. I thought that I would take a look at the statute and evaluate the statutory language to determine what the law actually says. I should note that I don’t teach criminal law or torts, and therefore do not have any expertise about these matters. This is a post simply by a law professor analyzing the statute.
The most important provision of the statute imposes an affirmative consent standard. Section 1(a)(1) provides that
“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.
The most obvious question here is what affirmative consent means. Conscious and voluntary seem relatively straightforward (although there are issues), but what does affirmative mean? Does it mean verbal consent? Does it mean express consent?
The statute does not define the term and dictionary definitions are not entirely clear. In my view, one can read the language either way. Some definitions of affirmative seem to imply expressing or asserting it. Other definitions might be understood as merely requiring an action on the part of the person. (See, e.g. an affirmative duty to stop crimes in their buildings.) While I would probably read it in the latter way, the statute is not clear.
Obviously, the statute could have easily addressed the matter, one way or the other. Given the obviousness of the issue, the only conclusion appears to be that the statute purposefully left the issue vague. That seems both unfair and bad policy.
Under the interpretation that requires a verbal expression, the passive partner must say something like “yes, I want you do X to me.” Under the interpretation that allows non verbal expression, presumably the passive partner could indicate consent by participating in the action, such as kissing his or her partner back. Of course, if the statute requires verbal consent, then the fact that the partner kisses back is not good enough.
Consider another issue. When must the consent be given? Suppose A wants to kiss B. A could ask B, can I kiss you? An affirmative answer would be consent under the statute. But requiring verbal consent for every kiss (and for the first one) is a bad idea. So what if A just started to kiss B, and B kissed back. That would not be good enough under the statute, since the consent did not come first. Perhaps B would not complain to the college about this action, but B might change his or her mind later. Moreover, if B did not welcome the kiss, he or she might very well complain about it. Another possibility is that A could bring his or her lips up to B’s mouth and just wait there, hoping that B would consent. Perhaps B could smile or nod his or her head. But not moving away would not be sufficient, since lack of protest or resistance is not sufficient to indicate consent.
This assumes that kissing is sexual activity. Is it? We don’t know for sure, since the law does not define that term either.
Of course, consent – verbal or otherwise – would be required for all sexual activity. After the kiss, A might try to pursue other actions, such as touching, undressing, etc. Presumably, at each stage the same issues would arise. This not only follows from the ordinary definitions, but is confirmed – yes the law knows how to clarify when it wants to – by the provision that states that “affirmative consent must be ongoing throughout a sexual activity.”
There is quite a bit more that one could say about the text of the law. Perhaps I will write another post.