Last year, California adopted a new approach to sexual assault cases that happen on state-funded college campuses. The new law became known nationwide for introducing an “affirmative consent” standard in all disciplinary hearings related to sexual misconduct.
Six months after the law went into effect; two California legislators want high school health education courses to spread the word about the affirmative consent standard. Senate President Kevin de Leon and Assemblywoman Hannah-Beth Jackson announced the introduction of SB695, a bill designed to require school districts where health education is a graduation requirement to make sexual violence prevention a part of the curriculum. Part of that would be to educate young men and women on the affirmative consent law.1
What is Affirmative Consent?
Essentially, the affirmative consent law puts the burden of proof on the accused in a university sexual assault disciplinary hearing to prove that their partner gave them permission to engage in sex for the entire duration of the activity.
This means that if you are a college student in California, you need to seek a clear “yes” – verbally, or in the form of a nod or smile – from your partner before and during engaging in sexual activity. If either person is intoxicated or unconscious, consent cannot be given.2 The standard is no longer “no means no,” where consent can be implied unless the other person says no. It is now “yes means yes,” where consent cannot be implied at any time.
The shift in the burden of proof makes it tougher for a student to defend his or her conduct because the new law forces schools to apply a “preponderance of evidence” standard in disciplinary hearings. This means that the accused could be disciplined if the tribunal determines that there is enough evidence to show that the accused more likely than not committed the act.3 This is a lower standard than the “beyond reasonable doubt” standard of criminal trials, which requires that the tribunal find that no reasonable person could doubt that the accused committed the act.
Getting a Head Start on Sexual Assault Prevention
Research shows that for many students, encounters with sexual assault begin well before they graduate from high school. The Journal of the American Medical Association Pediatrics published a study in March 2015 that analyzed a survey from the Centers for Disease Control and Prevention’s Youth Risk and Behavior Surveillance System (YRBSS). High school students were asked, “How many times in the last 12 months did somebody you were dating or going out with force you to do something sexually that you did not want to do?”
The study found that 20.9% of girls and 10.4% of boys reported experiencing some sort of physical or sexual dating violence in the prior 12 months. The researchers also found that students who reported both types of teen dating violence were more likely to have other problems, such as eating disorders, engaging in risky sexual behaviors, and drug and alcohol use. Depression and suicidal thoughts were more common among these students than those who had not experienced any dating violence.4
Proponents of teaching the new consent law to high school students believe that education about what is and what is not considered consent will reduce the frequency of teen dating violence, and teach young men and women to approach sexual activity in a more responsible and respectful manner. Whether this hope later becomes a reality remains to be seen, but at the very least, the education may help students avoid making mistakes that could land them in front of a tribunal with a lower standard of proof than a courtroom, which could cost them their college education.
Contact the Defense Attorneys at Wallin & Klarich To Learn More
If you are a student who has been accused of a sexual assault, you have an uphill battle on your hands, and continuing your education could depend upon choosing an experienced and aggressive attorney. Wallin & Klarich has been defending people accused of such crimes for over 30 years. Contact us today for a free, no obligation phone consultation and let us help you too.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich sex crimes attorney available near you no matter where you go to school or live.
Call us today at (888) 280-6839 for a free phone consultation. We will get through this together.
1. [Associated Press, “California Lawmakers Want High School Students To Learn About ‘Yes Means Yes’ Sexual Consent Law,” CBS SF Bay Area, March 3, 2015, available at http://sanfrancisco.cbslocal.com/2015/03/03/california-yes-means-yes-sexual-consent-high-schools-affirmative-consent-women-sex-assault-rape/. ]↩
2. [Cal. Ed. Code § 67386(a)(1), as amended by SB 967, available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967. In February 2014, the University of California adopted this language into its policy on sexual harassment and sexual violence, available at http://policy.ucop.edu/doc/4000385/SHSV.]↩
3. [Cal. Ed. Code § 67386(a)(3), as amended by SB 967, available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967. ]↩
4. [Kevin J. Vagi, Ph.D; Emily O’Malley Olsen, M.S.P.H.; Kathleen C. Basile, Ph.D; and Alana M. Vivolo-Kantor, M.P.H., “Teen Dating Violence (Physical and Sexual) Among US High School Students,” The Journal of American Medical Association Pediatrics, March 2, 2015. Abstract available at http://archpedi.jamanetwork.com/article.aspx?articleid=2173573.]↩
