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.