Gov. Jerry Brown signed a bill on Sunday making California the first state to set uniform definitions and standards for both private and public colleges to deal with sexual assaults.
The law’s main feature is a requirement that colleges adopt an “affirmative consent” standard, meaning that people must signal they are willingly engaging in sexual activity. In other words, only yes means yes.
Here is what the law will mean for colleges:
How is an affirmative-consent standard different than many other standards for sexual assault?
Usually, victims of sexual assault have to prove either that they said “no” to sexual activity or that they were unable to do so because they were impaired by drugs or alcohol, for example, or because of a mental or physical condition. Under the affirmative-consent standard, though, people accused of sexual assault will have to prove that their accusers clearly consented to sexual activity. That consent does not have to be verbal. But a lack of protest or resistance is not considered consent, nor is silence.
In addition, those accused of sexual assault cannot use the excuse that they were too intoxicated to determine whether consent was given. And they can’t claim that they had received consent if they knew, “or reasonably should have known,” that their accusers were incapacitated by drugs or alcohol, asleep or unconscious, or unable to communicate because of a physical or mental impairment.
Does this mean that campus sexual assaults will be judged by the same standards that the criminal-justice system uses?
No. The group or organization on a campus that eventually determines whether a sexual assault has occurred will use the “preponderance of evidence” standard, common in civil legal actions and grand-jury proceedings, rather than the “beyond reasonable doubt” standard used for criminal actions.
Under the preponderance-of-evidence standard, a person can be found guilty if it is “more likely than not” that he or she sexually assaulted the victim.
So that’s how colleges determine whether an assault happened. But does the law say anything about how to support victims after they report sexual assault?
Yes, it does. Under the law, colleges must follow an extensive list of new policies meant to support and protect victims of sexual assault, including privacy protections and specific protocols for interviewing victims and advising them of on- and off-campus groups that can provide additional help (including law enforcement).
The college also must provide confidential “survivor advocates” who are available to help advise and guide victims. Victims of sexual assault are also given immunity from violations of the college’s policies on drugs and alcohol in order to encourage them to report sexual assaults without fear of being punished.
How will colleges make those policies known to students and staff and faculty members?
The new law requires each college to create comprehensive training and outreach programs about their policies for pretty much everyone on a campus. The University of California system has already begun such work, for instance, by requiring all students to complete an online training and information session before they can register for courses. Occidental College also requires all students to complete online training, and the college has started an outreach program, called “Project SAFE,” that is meant to raise awareness among social groups and athletic teams.
So if that work has already started, is this law really a big change for colleges in California?
No, not really. Both the University of California and California State University systems have already adopted policies and procedures that largely follow the new law, though some particular parts could vary somewhat depending on how the state sets regulations. New students, for example, are already being required to complete online training about sexual assault in order to register for classes. Many private colleges in the state, too, had similar policies in place before the law was passed.
How do colleges feel about the new law?
Public and private institutions gave their support to the measure as it proceeded through the state Legislature, largely because they had already begun developing those policies on their own after a state audit revealed inconsistencies in how they were handling sexual violence.
