This week's question comes from Anne in Berkeley, who asks:
Q: “There is a lot of drinking that goes on at Cal. Much of it involves young women and men who are underage. A lot of it takes place in the fraternities and there is a lot of sex that goes on. I have seen girls getting very drunk being almost carried upstairs and I heard that there is a new law that is supposed to make it clear that drunk women are not to be taken advantage of. Can you write about it in your column so I can use it to educate the young women in our sorority?”
A: Anne, you are indeed right, California has adopted a very stringent standard to be applied within any college or university receiving state funds to be applied in determining if sex is consensual or unconsensual. Senate Bill 967, introduced by state Sen. Kevin de Leon, D-Los Angeles, was signed by Gov. Jerry Brown on Sept. 28.
Now codified in the California Education Code at Section 67386, the law requires that, in order to receive state funds for student financial assistance, the governing board of each community college district, the trustees of the California State Univeristy schools, the regents of the University of California schools, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, dating violence and stalking.
The new law requires that such a policy shall include 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. The law states that 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.”
The law provides that 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; or 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.
<p>Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.