Governor Signs Bill to Toughen Sexual Assault Legislation, Through Affirmative Consent

On Sunday, without comment, Governor Jerry Brown signed legislation that changes the standards for sexual assault and requires college campuses to adopt policies for rape responses that include an “affirmative consent” stand, which puts responsibility on someone engaging in sexual activity to obtain an affirmative, conscious and voluntary agreement from his or her partner.

This was nationally watched legislation that ultimately was backed by the chancellors of all three college systems: the California State University, the University of California, and California Community Colleges.

Senate Bill 967 author Senator Kevin de Leόn (D-Los Angeles) said, “Every student deserves a learning environment that is safe and healthy. With 1 in 5 women on college campuses experiencing sexual assault, it is high time the conversation regarding sexual assault be shifted to one of prevention, justice, and healing.”

Senator Hannah-Beth Jackson (D-Santa Barbara) said, “This bill is about changing the culture on college and university campuses to a culture of ‘no excuses.’ No excuses for rape, no excuses for blaming the victims of rape, no excuses for not supporting these victims, and no excuses for turning a blind eye to the problem of campus sexual assaults. SB 967 will create safer environments for students.”

SB 967 will require California colleges and universities to address campus sexual violence by requiring them to adopt consistent survivor-centered sexual assault response policies and protocols that follow best practices and professional standards for prevention, access to resources, and fair adjudication proceedings.

The measure strengthens preventative measures, including education about consent for students. To ensure a fairer campus adjudication process, the bill requires increased training for the faculty reviewing complaints, so that survivors of assault are not re-victimized by inappropriate questions when they seek justice.

The bill also requires access to resources like counseling and health services, which are absolutely critical for recovery.

California State University Chancellor Timothy P. White said, “The California State University will take the strongest possible measures to prevent any act of sexual assault or harassment within our campus communities. Senate Bill 967 is consistent with the long-standing priority of ensuring the safety and protection of the 450,000 students on our campuses and we appreciate the efforts of Senator de León to further ensure their safety.”

“The University of California has no tolerance for any form of sexual violence or harassment, and all 10 of our campus chancellors and I have taken a number of actions to ensure the safety of our students. As we continue to move ahead with our efforts, we welcome Senator De León’s legislation,” said University of California President Janet Napolitano.

“It is imperative that the entire higher education community embrace the policies and protocols outlined by SB 967,” said California Community College Chancellor Brice Harris. “Ensuring a safe and secure learning environment is an essential responsibility of our colleges and SB 967 will aid our system in meeting this commitment to our students, faculty and staff.”

Congresswoman Jackie Speier, who represents parts of San Francisco and San Mateo counties, wrote a letter to Governor Brown two weeks ago.

“This legislation takes an important first step away from current practice addressing sexual assault cases by establishing a ‘yes means yes’ standard for colleges and universities to determine consent. California’s public universities have always led the country, and with Governor Brown’s signature they will lead in protecting students,” said Congresswoman Speier. “No student should have to fear sexual violence at their college or university. Universities have failed to protect students, and we need to change course before more students become survivors. Twenty percent of young women and six percent of young men will be victims of attempted or actual sexual assault while attending college. When these survivors do come forward, they shouldn’t have to prove their assault wasn’t consensual.”

According to the Legislative Digest, the bill requires “the governing boards of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions, in order to receive state funds for student financial assistance, to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking that include certain elements, including an affirmative consent standard in the determination of whether consent was given by a complainant.

“The bill would require these governing boards to adopt certain sexual assault policies and protocols, as specified, and would require the governing boards, to the extent feasible, to enter into memoranda of understanding or other agreements or collaborative partnerships with on-campus and community-based organizations to refer students for assistance or make services available to students.

“The bill would also require the governing boards to implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence, and stalking. By requiring community college districts to adopt or modify certain policies and protocols, the bill would impose a state-mandated local program.”

According to the bill, “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,” the law now states. “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.”

Senator De León stated, “Our daughters, sisters, nieces, and friends should not live in fear of becoming a victim of violent crime while pursuing their academic goals.”

—David M. Greenwald reporting

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  • David Greenwald

    Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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152 comments

  1. “According to the bill, “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.”

    So if two college students end up having sex and neither one asked for consent are they both going to jail?

    If two college students have sex and neither one asked for consent but only the girl complains is the guy going to jail even though the girl never asked for his consent either?

    Stupid law!

    1. “So if two college students end up having sex and neither one asked for consent are they both going to jail?”

      Someone would have to file a sexual assault complaint.

      The way I see this working is that you get into a date rape situation, the defense is always along the lines that she never said know, this changes the burden from the woman (or man) saying “no” to the woman (or man) having to affirmatively say yes. It’s a burden shift in the law. Because right now, most sexual assaults don’t get reported and the reason is that it devolves into a he said/ she said.

      1. “If two college students have sex and neither one asked for consent but only the girl complains is the guy going to jail even though the girl never asked for his consent either?”

        And what’s your opinion of this scenario?

        This law has too many holes.

          1. So you have no answers and can only say I miss the point? The point is this new law has many holes.

          2. as far as i know you’re not an attorney. i haven’t read the law, but it does go through a lot of legal review by people who know more about the law than you do. given that, why would attorneys allow for a law to go through that has as many holes as you think it does?

          3. Because the people who crafted this are liberal idealogues, who work for liberal idealogues, who think they can somehow create an ideal utopia.

      2. Heck, most times I’ve had sex with my own wife I could be considered to have broken this new law.

        Two college kids get drunk and have sex and and even though the guy asked for her consent and she said yes because they were drunk he could be later brought up on charges if she made an issue of it.

        Dumb law!

        Leave it to Democrats to come up with crap like this.

        1. you clearly did not read the law before you posted. the key part of the law is this:

          in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
          (A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
          (B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
          (3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
          (4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
          (A) The complainant was asleep or unconscious.
          (B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
          (C) The complainant was unable to communicate due to a mental or physical condition.

          that’s a lot different than the scenario that you’re conjuring up. please read the law first before you make dumb comments.

          1. as you read this law, it becomes clear that it is really intended to deal with situations of casual sex between acquaintances, as an ongoing relationship would establish reasonableness and to prove spousal rape would require a much higher burden.

          2. A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

            (B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.

            You just showed the language that shows my post was valid. Maybe it’s you that needs to read the law before you make dumbass comments?

          3. explain how that language validates your comment? the current law forces the woman to prove that she didn’t consent, now the law forces the man to prove that she did. yes, guys should be reluctant to have sex with a drunk girl that he hardly knows. i fail to see how that makes the law bad or could be construed a bad thing.

          4. “Two college kids get drunk and have sex and and even though the guy asked for her consent and she said yes because they were drunk he could be later brought up on charges if she made an issue of it.”

            Reread my statement very slowly this time and try and think a little because as I stated my scenarion could full well take place under the language of this new law. Is the guy supposed to carry around a breathalyzer to make sure she’s not drunk and a tape recorder to show that she said “yes”?
            Dumb law.

          5. Is the guy supposed to carry around a breathalyzer to make sure she’s not drunk and a tape recorder to show that she said “yes”?

            That indeed is one alternative BP. It is a cumbersome alternative. A much simpler alternative is that if the guy suspects that the girl is under the influence or impaired, he simply should refrain from asking the girl to have sex with him. No breathalyzer, no tape recorder, just good judgement … and respect for a fellow human being.

          6. it is not illegal under this law to have sex with someone intoxicated. what this law changes is the defense that she was drunk and he thought she wanted it.

          7. I see you still don’t comprehend what I wrote, once again, I said that they were both drunk. So are they both breaking the law?

          8. I said that they were both drunk. So are they both breaking the law?

            Yes and no. They are both AT RISK of breaking the law. The only way that either of them will ACTUALLY be breaking the law is if either of them subsequently asserts that informed consent was not given.

          9. you’re creating an absurd scenario where both parties get drunk, both parties claim to be taken advantage of when you know full well that’s not likely and not what the legislation was written to address.

          10. No, not an absurb scenario at all. Two college students go to a bar, both get typsy, go out to a car and the guy says do you want to have sex and the girl says “yes”. They have sex but the girl later tries to bring the guy up on charges because even though she said yes she was also drunk and that makes her agreeing to have the sex with him not acceptable under the law.

            I can see that scenario playing out a lot and is why this law is just dumb.

          11. Barack, if the two college students get tipsy, then it is incumbent on the male member of the two NOT TO ASK the female member of the two whether she wants to have sex. The fact that it plays out a lot is no excuse. The guy should know better. He should use hi9s brain and NOT ASK for trouble, especially in a situation where he is at no risk and the female is at considerable risk.

          12. you understand that if you willingly get drunk, you are held accountable for your actions. on the other hand if the guy drugs her, then even if she says yes, it’s not consent.

          13. “The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.”

            Read the law as you posted it. It clearly states “alcohol”, it doesn’t state that it had to be given to her by the guy. It doesn’t state that she’s responsible for her actions of getting drunk, it just says if she’s incapacitated due to alchol.

            Yes, if he drugged her it’s a whole different ballgame, nobody is denying that.

          14. and you have to understand the rest of the laws. so, under the law, if you voluntarily drink alcohol, you are responsible for your actions. if you get drunk and kill someone, getting drunk doesn’t excuse you. if you get drunk, go have sex with a guy you don’t know, as long as you consented, then it was legal.

            where this law changes things is the gray area – the guy pressures the drunk girl to have sex, she didn’t want to, but she never said no explicitly. the law says it’s rape if she doesn’t say yes under that scenario.