January 15, 2015

HK’s Christine Helwick Tells the Daily Journal That “Only Yes Means Yes In California Schools”


SB 967: Only ‘yes means yes’ in California schools

California has become the first state in the nation to enact a “yes means yes” standard in university disciplinary hearings involving claims of sexual assault, domestic violence, dating violence and stalking. All colleges and universities that receive state funds for financial aid must have policies that oblige parties who engage in sexual activity to ensure that they have the affirmative consent of the other.

Affirmative consent is defined as “affirmative, conscious and voluntary agreement to engage in sexual activity.” It does not have to be verbal consent, but it cannot be conveyed by silence, a lack of protest or resistance, the existence of a previous dating relationship or previous sexual relations. Affirmative consent does not exist when a sexual partner knew, or reasonably should have known, that the other was asleep, unconscious or incapacitated due to drugs, alcohol or medication, or unable to communicate due to a mental or physical condition. It does not exist where a sexual partner claims confusion because of his or her own recklessness or intoxication. It must be renewed as sexual activity escalates. And it can be revoked at any time.

Students and faculty must receive training about affirmative consent, including training for all incoming students as a part of orientation. Campus policies must be “victim-centered,” include privacy protections, written information about preserving evidence, interview standards, coordination with law enforcement, participation of victim advocates, and contain a discipline exemption for student witnesses who might otherwise be afraid to come forward because of their own violation of student policies, such as participation in underage drinking. Campuses must provide trauma-informed training for those involved in investigation or adjudication of complaints. On- and off-campus support must be provided for all students, both victims and perpetrators.

The most remarkable aspect of this new law, however, is the shifting of the burden of proof in student disciplinary proceedings to the student who initiated the challenged sexual activity, who must offer a preponderance of evidence he or she had the affirmative consent of his or her sexual partner. Confusion or claiming a sexual partner’s failure to establish clear boundaries will no longer defeat a claim of unconsented sexual activity. If there was not a clear invitation to proceed, that can be demonstrated with objective evidence, the college or university must conclude there was no affirmative consent. This represents a transformational change in the university disciplinary process that will no doubt produce very different outcomes.

Christine Helwick is the former general counsel for the California State University system. She is of counsel at Hirschfeld Kraemer LLP and can be reached at chelwick@HKemploymentlaw.com.