California Adopts ‘Yes Means Yes’ Law: Having Sex Becomes Risky for College Students

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Oct 6, 2014

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Governor Jerry Brown recently signed the “Affirmative Consent” bill, making California the first state in the nation to adopt “yes means yes” laws.

Under the new law, which will take effect on college campuses, silence or lack of resistance from sexual activity does not constitute consent. The law defines people who are drunk, drugged, unconscious or asleep as unable to give consent.

The law also requires colleges to adopt new policies and guidelines for investigating and reporting sexual assault, representing a huge shift in the way cases are handled by schools.

How Will This Impact Your Dating Habits?

Couple Flirting in School LibraryYou are a 21-year-old college student at the campus pub. You meet someone and you begin to hit it off. A few drinks later, the two of you start kissing. Then, you head to your dorm room and engage in sexual intercourse. Nobody said “no,” but nobody explicitly said “yes.” Although it appeared that both parties consented to sexual activity, you could face discipline under the new law for your involvement in the act.

In addition, your sexual partner was drinking alcohol before having intercourse. Under the new law, a person who is intoxicated by drugs, alcohol, or medication cannot grant consent. But how is “intoxicated” defined legally?

According to California DUI laws, people who are 21 years old or older are legally drunk if their blood-alcohol content level is .08% or higher, and people who are under 21 are drunk if their blood-alcohol content level is .05% or above. It is not known if intoxication levels are considered the same under the new law, but it would be difficult to prove your sexual partner’s blood-alcohol content level at the time of consent.

How College Students May Avoid Sexual Assault Charges

The goal of the new law is to protect alleged victims of sexual assault. However, the way the law is written makes it impossible for a college student to know when he or she is able to legally engage in sex with a seemingly consenting partner.

Lawmakers say the new law allows for consent to be given verbally or nonverbally, and some universities have begun to outline nonverbal acts – including nodding the head or moving in closer to a person – as ways to express consent. College students should check on their school’s policies with campus officials immediately. However, it is best to receive explicit consent from your sexual partner before engaging in any sexual activity.

In order to avoid any possibility of facing sexual assault charges, you should avoid having sex with someone who has been drinking alcohol. You should also be prepared to record you and your sexual partner explicitly giving consent on your cellphone or other recording device prior to engaging in sexual activity. If your sexual partner were to scream “yes” during the sexual act, that would not be sufficient because the permission must take place before the sex begins.

Will Affirmative Consent Laws Cause More Harm than Good?

While state lawmakers’ attempts to protect victims in sexual assault cases are well-intentioned, creating new legislation simply will not change the current reality of college life in America. In a college environment, where hormones are raging and alcohol flows freely, sexual relations will continue when one or both parties are intoxicated. All the laws in the world will not be able to alter that reality.

No college student should be kicked out of school for the sole reason of engaging in sexual activity with someone who was intoxicated or because their sexual partner did not explicitly state “I consent to this sexual activity.”

The law is simply ridiculous. It punishes college students merely for being college students, and it can never be lawfully enforced. It will be challenged for vagueness and it will be challenged as being unconstitutional.

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