‘Yes Means Yes’ v. ‘No Means No’
Some states have enacted laws that use a new affirmative consent standard, colloquially referred to as “Yes Means Yes.” These affirmative consent laws apply only in disciplinary proceedings for campus sexual assault in California and New York but not in criminal proceedings.
In other states, laws define sexual assault using the old consent standard (“No Means No”) in terms of campus sexual assault, but may have some sex offenses that can be charged in the criminal justice system using an affirmative consent standard. (See Anderson, Michelle J., All-American Rape, 79 St. John’s L. Rev. 625 (2005).)
There is no national, uniform definition of consent. Despite requests for a uniform definition for Clery Act compliance purposes, the Violence Against Women Act’s (VAWA) recent final regulations didn’t adopt a uniform definition since all sexual offenses reported to campus security must be included in Clery statistics. (See Dear Colleague letter [Gen-15-15: Implementation of the VAWA Final Regulations] dated July 22, 2015, http://ifap.ed.gov/dpcletters/GEN1515.html.)
However, according to the Department of Education’s report on implementation of the VAWA final regulations, a “valid starting point” for defining consent is “the affirmative, unambiguous, and voluntary agreement to engage in a specific sexual activity during a sexual encounter.” Under this definition, someone who was asleep, or mentally or physically incapacitated, either through drugs or alcohol or for any reason, or who was under duress, threat, coercion or force, would not be able to consent. “Further, one would not be able to infer consent under circumstances in which consent was not clear, including but not limited to the absence of ‘no’ or ‘stop’ or the existence of a prior or current relationship or sexual activity,” the report also states.
Silence Is Not Affirmative Consent
Recent California legislation requires that colleges and universities adopt affirmative consent as the standard for disciplinary proceedings for sexual assault. Such proceedings must be determined by a preponderance of the evidence (see Cal. Ed. Code §§ 67385-67386). New York adopted a similar affirmative consent standard for college campuses in 2015 (S5965-2015 [N.Y.]).
Under the “Yes Means Yes” model or affirmative consent standard, the victim must say yes to the sexual acts, either in words or by affirmative actions that a reasonable person would understand to mean yes. Under the affirmative consent standard, silence is not affirmative consent. Force or duress do not have to be proven in a campus disciplinary proceeding utilizing the new standard – just lack of affirmative consent.
Under the “No Means No” model, a victim of sexual violence must affirmatively express lack of consent in words or actions. With the “Yes Means Yes” model, passive acquiescence or silence must be construed as nonconsent because words or actions are required to indicate consent. The “No Means No” standard can be particularly difficult to meet in the context of the type of sexual violence that typically takes place on campus where most sexual assault takes place between acquaintances and alcohol is often involved.
California and New York’s affirmative consent standards for campus sexual assault were only recently adopted, and there is not yet any judicial guidance on how this may change the outcomes in campus sexual assault cases. Since the criminal justice standard for proving requires proof beyond a reasonable doubt while in a campus disciplinary proceeding the evidentiary standard is by a preponderance of the evidence, it is possible that the disciplinary proceeding is more likely to achieve justice for victims. However, recently there has been an increase in the number of accused students raising questions about due process in these proceedings, highlighting another area of liability for schools.
Every administration wants to provide a safe campus for its students. The best way to protect students and limit legal liability at the same time is to be proactive. Adopting the following best practices will help your institution comply with Title IX, Clery, VAWA and, if you are in California or New York, the new affirmative consent laws.
Provide Students with Proactive Sexual Assault Prevention Education
This training should begin as early as orientation but should not stop there. Schools should enlist support from fraternities and sororities and other campus organizations to provide continuing education about sexual violence on campus.
Peer intervention training is tantamount to preventing sexual violence. Schools must educate students so that they understand that sexual assault on college campuses is rarely stranger-on-stranger crime, but rather is usually committed by acquaintances, friends or friends of friends they make in the dorms or Greek systems, dates, etc.
In California, education about the affirmative consent standard is now mandatory on college campuses, and the new law specifically requires that campuses address a range of prevention strategies, such as victim empowerment, programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction (See Cal. Ed. Code
§67386).
