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What College Students Need to Know About 'Yes Means Yes' Laws

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By Christopher Coble, Esq. on August 06, 2015 10:59 AM

The issue of sexual assault on college campuses has exploded in recent years and some states have responded with strict affirmative consent laws, also known as "Yes Means Yes" laws.

How do these laws work? How can they protect you from sexual assault and how can you make sure you have your partner's full consent before engaging in sexual activity?

Yes Means Yes Statutes

Both California and New York have passed affirmative consent laws, which require state-funded universities to have strict "yes means yes" policies. Specifically, California's affirmative consent statute requires colleges to adopt:

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.

Under the statute, neither intoxication (by either party) nor a prior dating or sexual relationship will be a valid excuse for not obtaining affirmative consent.

Affirmative Consent in Practice

The law also includes detailed requirements for investigating sexual assault claims, as well as mandatory "counseling, health, mental health, victim advocacy, and legal assistance" for both victims and the accused.

It's still unclear how the law will affect prosecutions of campus sexual assault or the sexual encounters of students. Students won't be required to sign contracts or release forms, and in most cases non-verbal consent is OK. In all likelihood, "Yes Means Yes" laws won't affect the majority of consensual sexual encounters. Instead, they will ease the process of reporting and prosecuting sexual assaults and place the burden of consent on both parties, rather than putting the burden of proof on the victim.

If you've been the victim of sexual assault, you should report it immediately; there are victim resources available if you need them. Victims and those accused of sexual assault should consult with an experienced attorney.

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