August 29 2014
Well, goodness—I suppose prudes such as myself should secretly think California’s “yes means yes” bill, which passed unanimously in the state Senate yesterday, is a good idea.
The bill, if Governor Jerry Brown signs it (and he will), makes college sex so fraught with legal peril for guys that only the most fool hearty among them will even dare.
Except of course that that is not how life on campus is, and the upshot of the legislation will be that a lot of young men who thought they were having consensual sex will end up in being hauled before campus tribunals where they will be branded rapists.
The bill requires that in sexual encounters on campus consent must be progressive and renewed throughout the sex act. But it’s not clear what constitutes consent:
Silence or lack of resistance does not constitute consent. The legislation says it's also not consent if the person is drunk, drugged, unconscious or asleep.
Lawmakers say consent can be nonverbal, and universities with similar policies have outlined examples as maybe a nod of the head or moving in closer to the person.
I absolutely and unequivocally have no problem with severe and life-changing legal penalties for a young man who engages in sex with a woman who is asleep or passed out drunk.
Still, it would be possible, as I read the law, that if a young man engaged in sex with a young woman after they had both indulged in mild drinking, he could end up with a rapist label.
In June, when the bill was first being widely talked about, David Bernstein wrote a piece in the Washington Post. The headline summed up what the bill could mean for a young man who believes he is having sex with a willing partner but fails to get ongoing consent (or the partner decides the next day she didn’t want to have sex after all): “YOU Are a Rapist; Yes YOU.”
Just to be clear--we regard every accusation of sexual assault as serious. So serious that law enforcement, not a campus disciplinary tribunal, should handle it.