Law must enforce “Yes means yes”
At the end of September, California passed a wave of new bills that included SB 967, more commonly known as the affirmative consent law. The bill shows that California is responding to a need for laws that protect its citizens against sexual assault. However, the bill does not address the immediate reasons behind why sexual assault cases have become such a problem.
California’s new law requires that universities use affirmative consent — or “yes means yes” — as the definition of consent and provide training programs to their students, which will get people talking about consent and hopefully change the culture surrounding rape. However, the bill leaves huge gaps in terms of actually deterring and prosecuting sexual assault.
In most sexual assault cases, it is not a lack of a clear-cut definition of consent that is the major problem, but rather the lack of a proper response when such cases are reported. In Catholic Church sex abuse scandals, for example, there is no question that children abused by priests were unable to consent. The major problem is that the church failed to investigate the claims properly and punish the offenders. The perpetrators don’t care about their victims’ consent, especially when their victims are powerless to seek justice against them.
There will always be some difficulty in enforcing laws against sex crimes because the acts are almost always done in privacy and it is difficult to tell if someone has been sexually assaulted from physical evidence. As a result, scandals involving sexual assault or abuse share two main characteristics: one, victims are often reluctant to report the crime; two, even when it is reported, the investigation can be inadequate, opaque, or too time-intensive and emotionally draining for the victim to follow through on the proceedings.
In the latter case, victims don’t report because they fear exposing such vulnerable moments of their private life to other people, as well as backlash from members of their community. In the former, there are a number of well-publicized stories of schools mishandling sexual assault cases. In some cases, administrators dismiss cases outright. In other cases, they either do not adequately punish the perpetrator or provide no protections to the victim against further actions by the perpetrator.
Regarding enforcement, the bill does state that each university should have a policy regarding investigations, but it does not specify exactly what policy universities should have. Without specific guidelines on reporting and enforcement, the bill does nothing to protect a victim’s privacy or ensure a fair investigation. Some specific policies to consider are: independent and anonymous panels to review cases, laws protecting the privacy rights of victims who report sexual assault, and proper documentation of the proceedings to which the victim has access so the victim has legal recourse if the school mishandles their case.
Furthermore, the bill offers no clear guidelines as to how to resolve cases in which there is no evidence other than the testimonies of the victim and perpetrator, or if both parties have been drinking and one later reports the other. These difficult cases, along with other important policies on enforcement, would presumably be left up to the schools to decide, which is hardly any different from the status quo.
With all these ambiguities in the bill, at best it can be a state-sponsored awareness campaign. With specific guidelines on enforcement, not only would California better protect its college students in cases of sexual assault, but it could also be a model on which other institutions can base their procedures for handling sexual assault. Consent should only be the starting point for which any sexual assault policy is based on; hopefully California will follow up on SB 967 with laws more focused on enforcement.