College creates a lot of opportunities for students to explore new things after leaving the confines of their parents’ homes. One of the biggest frontiers for exploration is sexuality. We’re suddenly surrounded by the opportunity to explore relationships with members of the opposite or same sex. And if there wasn’t already enough awkward pressure on college students to open up and explore, California has adopted a new Yes Means Yes legislation.
Two weeks ago Jerry Brown, the California governor, signed a bill that required all colleges receiving state money for financial aid to enforce a standard of what’s called affirmative consent. There is complicated legal jargon that literally says at each step in the process each party must agree to sexual contact. The agreements can be verbal or non-verbal and must be clear at each stage of the encounter. An initial yes to a kiss does not constitute a yes to sexual intercourse.
Aside from the students’ laughter I am sure the law is receiving, the law will be legally ripped to shreds. It’s full of words that have too much leeway and leave room for multiple different interpretations. The law states that consent must be continual, but silence does not constitute a yes. What is continual consent? Consent to one person might mean something completely different to someone else. And what exactly constitutes a non-verbal affirmative consent?
The loopholes don’t stop there either. The law is vaguer when alcohol is present. It states that intoxication is not a valid excuse for believing someone consented. It further states, “If the accused knew or reasonably should have known that the complainant was unable to consent [because she was too drunk to] understand the fact, nature, or extent or the sexual activity.” Without a written agreement, I am not sure there is a way the accused could get the law to be interpreted in his favor.
The interpretation of the law is usually in the hands of campus officials instead of real judiciaries. Not to say that campus procedures aren’t serious, but they don’t provide any sort of certainty. The people who decide a verdict often have no legal experience and the accused usually has no form of a lawyer or rights to cross examination.
I understand the reasoning behind the creation of the law. It is trying to reduce sexual violence across campuses, a great cause, but it is going about it completely wrong.
The lawmakers have a lot to learn about our generation if they believe the millennials will take this law seriously. Intimate moments form around impulse and instincts; they don’t constitute order and rules. Budding relationships are sensitive to everything, and the continued consents don’t exactly scream romantic. Moments are born out of thin air and can’t have a due process. The California legislature might think they are doing justice, but if it thinks students will ask one another if they consent as they round each base, these legislators are truly out of touch.
