Russell Hebets Sept. 29, 2014

On Sunday California Governor Jerry Brown signed a bill into law which scraps the old No Means No refrain surrounding sexual assaults. Under California Senate bill 967, silence or lack or resistance does not constitute consent for sexual activity. Further, the bill articulates that someone who is drunk cannot give consent. What does this mean for Californians? Do California residents need to start carrying portable breathalyzers? Keep an “I agree to sleep with you” contract next to the condom in their purse or wallet? Not quite, but there are some significant issues related to this law.

The first thing to know is that this law does not apply to ordinary Californians, nor is it a statute affecting criminal prosecutions. This law lays down the standard to be used by University disciplinary boards when a claim of rape is brought to their attention. Universities receiving state funding, or accepting students who receive state grants, are the entities covered by this law. While this is limited, clearly the high majority of Californian higher education institutions are covered.

Although this bill does not affect the majority of the population, it is almost inevitable that it will face a constitutional challenge. There are more than one areas of the bill that would have an aggressive constitutional lawyer salivating, including potential Due Process violations. Let’s not kid ourselves about the amount of drinking that goes on at college campuses across the country. How are Universities going to determine how drunk you have to be to lose the ability to consent? In the average college environment, there are a large number of consensual hook-ups that currently happen without an explicit “I agree to have sexual intercourse with you.” What evidence of “non-verbal” consent will suffice to show that there was a meeting of the minds? There are extremely challenging questions which are destined to land in the unenviable lap of University officials.

So what about the rest of us? For now, unless you’re associated with a covered University you are not directly affected by this bill. If this bill, or a version of it, makes it onto the criminal law statutes then the analysis changes dramatically. You can bet that there would be an immediate flurry of both praise and opposition; Prosecutors would have to completely rethink the way the handle sexual assault cases, and you could count on the beginning of a lengthy and expensive legal battle to determine the law’s legitimacy. It is obvious that the goal of the legislation is to convey a zero-tolerance approach to sexual assault, and while that may be a noble societal goal, it has to be done without running afoul of the Constitution. We will follow this one closely as it goes through the courts.