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.