California Passes New Affirmative Consent Law in Sexual Assault Cases

Author: Law Offices of Brad Bailey
Published: 28th Oct 2014 - Updated: 10th Jan 2015
Peer-Reviewed Publication: N/A
Additional References: LGBTQ News America Publications

Summary: California Governor Jerry Brown adopts new Yes Means Yes bill after high number of college campus assaults.

Main Document

In an effort to protect students from sexual assault on college campuses, on September 29, 2014, California Governor Jerry Brown adopted a new bill in regards to the high number of campus assaults. The bill known as "Yes Means Yes" is an affirmative consent law which aims to aid and change the way sexual assault reports are investigated by colleges.

Leading Boston Criminal Defense Attorney Brad Bailey reports that colleges across the nation are being urged to reform their policies when it comes to investigating reports and allegations of sexual assault and domestic violence.

The initiative is a departure from the previous "no means no" in that it requires affirmative voluntary, and conscious consent to engage in sexual activity. "Yes Means Yes" affirms that when investigating reports of sexual assault, the only consent that is accepted under law is that of a conscious and sober person who is completely agreeing to sexual activities, and not agreeing under threat or the influence of drugs, alcohol, or medication.

Senator Kevin de Leon, D-Los Angeles brought the legislation stating, "Every student deserves a learning environment that is safe and healthy... The state of California will not allow schools to sweep rape cases under the rug." He added, "We've shifted the conversation regarding sexual assault to one of prevention, justice, and healing."

The bill states that silence, or lack of resistance does not mean consent, and that someone who is under the influence of drugs, alcohol, medication, unconscious, or asleep cannot affirmatively consent to sexual activity.

The legislation will also require new training for all college campus staff members for reviewing assault accusations and to makes sure colleges provide adequate access to counseling and other health care services for victims. Brad Bailey states that college campus based sexual assault and violent crimes are often referred out for prosecution and prosecuted in state court.

Not all members of the California government were pleased to see the bill passed.

An advisor for the National Coalition of Men, Gordon Finley, wrote letters to Gov. Brown asking him not to sign the bill into action, asserting that he believed the bill assumes guilt of those accused. Many others, including attorney Bailey agree with Finley's dissent, warning that the law will tread in murky waters when it comes to investigating cases of two people in established relationships; sexual activity where alcohol is involved (which frequently occurs on college campuses); and standard he said/she said situations and/or "morning after regrets."

Criminal Defense Attorney Brad Bailey, who has handled hundreds of sex crimes cases during the last 25 years, has aired the same concerns when it comes to the bill.

While affirmative consent is aimed at protecting victims and those who are reporting assaults, he fears it leaves those accused without much support and runs afoul of fundamental fairness and due process. As the new law requires strict "Yes Means Yes" consent, many fear it may encourage false accusations and impermissibly shift the burden of proof onto defendants.

Attorney Brad Bailey, who has successfully defended many sexual assault cases, is worried about the bill, or initiatives like it, spreading to other states including his home state of Massachusetts. Already, inclusion of similar language in Harvard University's Sexual Harassment Policy and Procedures Manuel is sparking fierce on-campus debate. Recently, twenty-eight (28) members of the Harvard Law School Faculty expressed grave reservations about due process implications and procedures being "stacked against the accused" as a result of implementation. Attorney Bailey, who frequently represents Boston-area students, including those at Harvard, under suspicion for, or charged with, sexual assaults or other violent conduct shares these same concerns.

Bailey notes that while affirmative consent may be seen as a progressive law designed to protect victims, any student who has been accused of sexual assault or misconduct should immediately seek experienced and skilled outside legal representation, as sexual assault cases will now be more complex in terms of how they must be defended.

Attorney Brad Bailey advises if you have been involved in or accused of sex crimes, violent crimes, or any other criminal offenses, in or outside the university campus area, you should contact an experienced criminal defense attorney without delay and refrain from answering any questions or making any statements until you have done so and/or unless your attorney is present.

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