A bill recently proposed in California would introduce “affirmative consent” into state law. The new bill, SB 967, would require college students to obtain explicit consent before engaging in sexual activity. This bill explains that the person wanting to participate in a particular sexual activity with another person is responsible for getting explicit consent from the other person either verbally or through other “unambiguous actions” before engaging in the act.

The bill, co-authored by Sen. Hannah-Beth Jackson, D-Santa Barbara, and Assemblywoman Bonnie Lowenthal, D-Long Beach, would establish “affirmative consent” as the standard for determining whether consent had been given by the accuser in an on-campus sexual incident. This puts the responsibility on a person who wants to engage in sexual activity to ensure that he or she has explicit consent from his or her partner.

How is this Different from Current Sexual Assault Laws?

Current law regarding sexual consent puts the burden on the accuser to express a lack of
consent to an alleged attacker by saying “no” or resisting. Prosecutors in a sexual assault case then must show that the accuser did not give consent or was unable to for some reason (such as intoxication). SB 967 shows a shift from the “no means no” policy on college campuses to a policy requiring both partners to explicitly say “yes.

The proposed legislation would prevent those accused of rape from using alcohol or drug intoxication as a defense for not knowing that the sexual behavior was not consensual. It also would not allow the existence of a dating relationship to automatically qualify as consent from both parties. In other words, consent must always be given by each party any time that sexual activity is taking place, regardless of a current or past relationship.

The criminal approach to rape cases typically requires the victim to prove that he or she said “no.” Affirmative consent however, shows a cultural shift that requires both sexual partners to say “yes” in order for their encounter to be considered consensual.

How will it Affect the Accused in On-Campus Sexual Assault Case

If you have been accused of sexual assault on a college campus, SB 967 would eliminate several common defenses regarding a lack of consent. According to the proposed legislation, the accused person cannot use a defense that he or she thought the other party consented to the sexual activity for any of the following reasons:

• The accused thought there was consent because he or she was intoxicated;
• The accused assumed there was consent because he or she and his or her partner were in a relationship; and
• The accused thought there was consent because his or her partner was either silent or did not resist.

The accused must take reasonable steps to make sure the other party was consenting. If you do take the reasonable steps to make sure the other party consents and there is any confusion about his or her response, it would make it your responsibility to immediately stop engaging in the sexual act.

How the Affirmative Consent Law Protects Victims

To avoid any confusion about consent, the bill also states under what circumstances a person is unable to agree to sexual activity:

• The person is asleep or unconscious;
• The person is incapacitated due to drugs, alcohol, or medication;and
• The person is unable to communicate due to a mental or physical condition.¹

The proposed legislation strengthens victims’ rights to remain anonymous after they report a sexual crime on campus by requiring California institutions to outline a policy on how they will do so. They will be required to maintain relationships with rape crisis centers that can be available to assist victims as well as advise university officials on how to handle each unique sexual assault accusation.

Call the Sex Crimes Attorneys at Wallin & Klarich Today

If you are facing charges of sexual assault or rape, it can have a major impact on your life. Understanding current rape laws is crucial to your case. The attorneys at Wallin & Klarich have been successfully defending our clients accused of rape for over 30 years.

With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, Wallin & Klarich has an established reputation of providing its clients with round-the-clock support. Our skilled and knowledgeable attorneys know what it takes to get the best possible outcome in your case.
Call us at (888) 280-6839 for a free phone consultation. We will be there when you call.

^{1. [http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967]↩}