UPDATE: As on January 1, 2015, Yes Means Yes is now the law in the State of California. New York is considering a similar law. Find out what the new Yes Mean Yes law means for you.
Believing that the current campus sexual environment is not confusing and dangerous enough for men, California is redefining the word rape in a way that rape has never been used except by the most radical of feminists. The California senate voted unanimously to approve Senate Bill 967 (SB-967 Student safety: sexual assault), which includes so-called Yes Means Yes definition of consent. This bill will become law if California governor Jerry Brown signs it, which he almost certainly will do sometime in September.
Executive summary: California’s Yes Means Yes law does not redefine the criminal definition of rape. Instead, SB-967 requires colleges and universities to redefine rape under the college’s internal disciplinary rules. This is a change in the civil provision of the Education Code.
In other words, a man can be convicted of civil rape and expelled from college without ever facing a criminal prosecution for rape. There are pros and cons to this change. Pro: In a criminal trial a man actually receives due process of law. Colleges are infamous for running anti-male kangaroo courts. Cons: Most men would rather be expelled from school than charged with a crime.
How does the Yes Means Yes law define rape?
Under SB-967, a man is guilty of rape if he does not obtain affirmative consent to sex. “‘Affirmative consent'” means affirmative, conscious, and voluntary agreement to engage in sexual activity.” On its face, the new legal requirement doesn’t seem unreasonable. Don’t have sex with unconscious girls and girls who don’t agree to have sex.
The big issue with SB-967 is the requirement that consent be “affirmative.” What is an affirmative agreement to have sex? More importantly, how does a man show that a girl affirmatively agreed to having sex with him?
After all, school disciplinary procedures do not give young men due process. The burden of proof is on the man to show that he is innocent – which means he must somehow show the girl he had sex with was really really really into the sex.
Under SB-967, a man is guilty of rape if his shy girlfriend is not freaky enough, is not grabbing his hands and putting it on her lady parts, and is not waking up the neighborhood with screams and moans of pleasure. Think I’m exaggerating? Then read the billl, which states, “Lack of protest or resistance does not mean consent, nor does silence mean consent.”
Even if she’s already your girlfriend, she must be loud and freaky every time you have sex. Again, don’t take my word for it. Read the law. “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.”
How does the Yes Means Yes law change the law of rape and sexual assault?
Even though SB-967 does not change the California Penal Code, to understand the definition of consent we must turn to the law of sexual assault. Specifically, we must analyze the difference between non-consent and affirmative consent. To put it in plain language: What is the difference between she did not consent at all and she did not affirmatively consent?
Under current law, a man accused of sexual assault or rape is not required to prove the alleged victim affirmatively consented to sex. (She really was into the sex.) Instead, the prosecutor must prove beyond a reasonable doubt that the woman did not consent to sex. (She said no; the defendant overcame her will.)
California Criminal Jury Instruction 1000, “Rape or Spousal Rape by Force, Fear, or Threats,” provides:
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant had sexual intercourse with a woman;
2. He and the woman were (not married/married) to each other at the time of the intercourse;
3. The woman did not consent to the intercourse;
4. The defendant accomplished the intercourse by [force or fear, future threats of bodily harm, threat of official action.]
How “consent” is currently understood under the law of rape and sexual assault.
The notes to Instruction 1000 state that sex is nonconsensual where: (1) the woman “communicated through words or act that she no longer consented to the act of intercourse,” or (2) A reasonable man “would have understood that her words or acts expressed her lack of consent.”
Under existing law, “A man cannot be convicted of rape if he actually and reasonably believed that the woman consented to intercourse.” Instead, “The People [prosecution] have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented. If the People have not met this burden, you must find the defendant not guilty.”
Generally speaking, a man knows a woman has not consented to sex when she expresses her non-consent. “No means no.” See, In re John Z. (“[T]he offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection . . . . ‘[I]t is immaterial at what point the victim withdraws her consent, so long as that withdrawal is communicated to the male and he thereafter ignores it.'”)
How consent is defined under California’s Yes Means Yes law.
Under SB-967, a man can be guilty of rape even if the girl doesn’t say no, tell him he is moving too fast, or otherwise communicate that she doesn’t want to have sex.
Again, let’s look at the text of the law: “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity…. Lack of protest or resistance does not mean consent, nor does silence mean consent.”
If a girl is smiling during intercourse, did you rape her? Under the law, perhaps. After all, is a silent smile evidence of affirmative consent?
If you and your girlfriend get drunk and have sex, are you a rapist? Under the new law, yes. “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.”
Does “Yes mean yes?”
Keep in mind that many feminists do not believe that saying yes is evidence of consent. Hana Shafi is a leading feminist activist who organizes various slut walks. As she noted in a Facebook post, Yes does not mean yes. A man can be guilty of rape even if a woman says yes to sex.
(“The ‘yes means yes no means no’ chant is catchy, but alienating and triggering to those survivors whose yes wasn’t actually consent. A simple ‘yes’ is not consent, it has to be….enthusiastic.” – Hana Shafi.)
What does the Yes Means Yes law mean for you?
Although the bill deals with school disciplinary procedures and does not change the criminal offense of rape, all men should be on high alert. Changes in the law are incremental. Today it’s college freshmen getting expelled from school. Tomorrow it’s your butt on trial for rape.
What’s the bottom line?
- Under California’s Yes Means Yes law, waking someone up with a blow job or other form of sex is rape.
- This is tricky stuff. No one, not even the lawmaker who wrote the bill, understand what it means.
- Even I can’t say for sure what conduct would or would not fall under SB-967. How is a sexually inexperienced college freshman supposed to understand the new law?
- To convict a man of rape, the prosecution must show you overcame the girl’s consent. This standard was generally applied to college students accused of rape as well. No longer.
- To kick a young man out of college, a kangaroo court only has to show she wasn’t that into it.
As they say, “Keep yourself protected at all times.”
Be sure to check out my post on how to avoid a false rape accusation.
Check out the podcast on false rape accusations, too.