"Yes Means Yes" California now all but requires a sworn notarized statement before you can have sex

Did these bears get "affirmative consent" first?

I'm not exaggerating by much: The California legislature passed a bill that requires "affirmative consent" before two people can engage in consensual sexual activity. Instead of the old "No Means No," California adopted a "Yes Means Yes" policy. What's the difference?

The Washington Post offers an explanation as to what Yes Means Yes Means:

Under the proposed standard, the fact that a person didn’t say “no” is no defense in a campus sexual assault investigation.

In addition to consenting up front, the bill requires affirmative consent to be “ongoing throughout the sexual activity,” meaning that sexual partners must agree to each step of a sexual encounter as it progresses and consent can be revoked at any time. The standard would apply to all sexual encounters regardless of whether the parties are having a one-night stand or are in a long-term relationship.

One thing the bill doesn’t say is that affirmative consent must be verbal. The bill’s original language warned “relying solely on nonverbal communication can lead to misunderstanding,” but that language was removed as was the requirement that consent be “unambiguous.” Nonetheless, as Slate’s Amanda Hess pointed out, this fact was lost on commentators, some who lamented the standard would redefine most sex as rape and would require students to agree to a verbal or written contract before sex...

While the bill doesn’t spell out what “affirmative, conscious, and voluntary agreement” looks like in practice, it’s very clear what doesn’t count as consent: lack of protest or resistance, silence, unconsciousness or being asleep or too intoxicated to understand what’s going on...

Sexual assault prevention advocates welcomed the bill, which challenges the idea that victims have to resist an assault in order to have a valid complaint. “The survivors [of sexual assault] are going to be positively affected because they are going to be going into a system that no longer asks them why they didn’t do something,” Denice Labertew, the director of advocacy services at the California Coalition Against Sexual Assault, told Inside Higher Ed in June.


But critics say the proposal unfairly burdens those accused of sexual assault. “How does a person prove they receive consent “shy of having it videotaped,” Joe Cohn, the legislative policy director at the Foundation for Individual Rights in Education, told Inside Higher Ed. Cohn said the policy reverses the presumption of innocence for the accused, which he called a “dramatic and important shift.”

Here is the actual bill, so you can try to figure it out yourself:

SENATE BILL No. 967

Introduced by Senators De León and Jackson
(Principal coauthor: Assembly Member Lowenthal)
(Coauthors: Senators Beall, Cannella, Evans, Galgiani, Monning, Pavley, Torres, and Wolk)
(Coauthors: Assembly Members Ammiano, Fong, Gonzalez, Quirk-Silva, Skinner, Ting, and Williams)

February 10, 2014

An act to add Section 67386 to the Education Code, relating to student safety.


LEGISLATIVE COUNSEL'S DIGEST

SB 967, as amended, De León. Student safety: sexual assault.
Existing law 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 to adopt and implement written procedures or protocols to ensure that students, faculty, and staff who are victims of sexual assault on the grounds or facilities of their institutions receive treatment and information, including a description of on-campus and off-campus resources.
This bill would require 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.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

BILL TEXT
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 67386 is added to the Education Code, to read:
67386. (a) In order to receive state funds for student financial assistance, the governing board 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 shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:
(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “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. 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.
(2) A policy that, 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.
(b) In order to receive state funds for student financial assistance, the governing board 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 shall adopt detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards. At a minimum, the policies and protocols shall cover all of the following:
(1) A policy statement on how the institution will provide appropriate confidentiality for individuals involved in an incident. protections for the privacy of individuals involved, including confidentiality.
(2) Initial response by the institution’s personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.
(3) Response to stranger and nonstranger sexual assault.
(4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview, as appropriate.
(5) Contacting and interviewing the accused.
(6) Seeking the identification and location of witnesses.
(7) Providing written notification to the victim about the availability of, and contact information for, on- and off-campus resources and services, and coordination with law enforcement, as appropriate.
(8) Participation of victim advocates and other supporting people.
(9) Investigating allegations that alcohol or drugs were involved in the incident.
(10) Providing that those an individual who participate participates as a complainant or witness in the an investigation of sexual assault, domestic violence, dating violence, and stalking, either as a complainant or a third-party witness, or stalking will not be subject to disciplinary sanctions for violations a violation of the institution’s student conduct policy at or near the time of the incident if the violations did not place incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk. risk or involves plagiarism, cheating, or academic dishonesty.
(11) The role of the institutional staff supervision.
(12) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.
(13) Procedures for confidential reporting by victims and third parties.
(c) In order to receive state funds for student financial assistance, the governing board 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 shall, to the extent feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students, including counseling, health, mental health, victim advocacy, student advocacy, and legal assistance, and including resources for the accused.
(d) In order to receive state funds for student financial assistance, the governing board 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 shall implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, empowerment programming, programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the institution’s policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution’s overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy. Outreach
(e) Outreach programming shall be included as part of new student orientation. every incoming student’s orientation.

This is the future of sex in California.