CA Passes “Yes Means Yes” Date-Rape Bill // Different Criminal, Civil Tort, College, CA Rules

WASHINGTON - Aug. 25, 2014 - PRLog -- The result would be a crazy, complex, and confusing patchwork quilt of rape rules, standards,  and definitions which young people are being asked to understand and apply, even in the throes of passion and when the judgment of both partners is significantly impaired by alcohol at the time, says public interest law professor John Banzhaf.

        Banzhaf, has studied the problem, and even proposed a unique remedy.

    CRIMINAL STANDARD - In most states, the criminal definition of rape, including date rape, requires that the defendant must have used force or the threat of force to carry out the act, or that the victim be "physically helpless" at the time.

        Thus, in many situations in which force was not an element, the act would not be rape even if the woman did not consent, or, indeed, even if she had in fact said "no."  Moreover, even if her judgment were significantly impaired by alcohol, the action would not constitute rape if she were able to move or speak at the time.  Thus, under criminal law in most states, “no” doesn’t always mean “no.”

    CIVIL STANDARD-  Sexual intercourse can constitute the intentional tort of battery, but an action by the woman for civil damages will be defeated if it can be shown that she manifested consent to the act.

        Unlike those who suggest that consent can only be manifested by an affirmative act, the civil law of torts has long recognized that a victim who says and does nothing at all may nevertheless be held to have validly manifested consent.  A hypothetical which has been used and repeated for more than 50 years says:

        "A boy and a girl are sitting on a park bench in the moonlight.  He tells her that he is going to kiss her.  She does nothing, and he kisses her.  Is he liable for battery?"  The answer, of course, is "no."

        The classic explanation is that silence and inaction can nevertheless manifest consent if a reasonable person who did not consent would say or do something affirmative to negate any impression of consent under the particular circumstances.   Thus, under the civil torts definition, a woman who doesn't object to sexual activities, even though she never affirmatively consented, has not been battered.

        Moreover, under torts law, "no" doesn't always mean "no" so as to satisfy the requirements for rape/battery.  In civil trials, the jury is told to look at the totality of the circumstances, and determine what any message - including one which uses the word "no," - would reasonable be understood to mean.

        In short, under both criminal law and civil torts law, "no" doesn't always mean "no."  Moreover, the fact that a woman was drunk at the time of the act doesn't mean that she has been raped.

    DEPT OF EDUCATION STANDARD - In sharp and dramatic contrast to the two well-established criminal and civil torts definitions of rape, the Department of Education seems to suggest a new one; that any sexual act constitutes rape - or at least sexual assault - unless the female affirmatively consented, and did so when her judgment wasn’t impaired by alcohol, and in any event if she once used the word "no," even if some would suggest that her conduct undercut if not negated her use of that word.

        In other words, even if the facts are clear, a man might well be guilty under this definition even if he would not be guilty in a criminal proceeding, and would not be found liable in a civil proceeding.

    CALIFORNIA'S PROPOSED STANDARD - California's bill would require all colleges that receive public funds to adopt a so-called “affirmative consent standard.”

        This standard, designed to standardize when “yes means yes,” requires “an affirmative, unambiguous and conscious decision” by each party to engage in sexual activity.

       The bill also provides that consent isn't legally valid if the person is drunk.  But a recent study by a major insurance company shows that, in 92% percent of the date-rape claims with losses, the accuser was under the influence of alcohol.

        If, in a significant number of such situations the male was also under the influence of alcohol, arguably neither could give legally valid consent. So, if both the male and female perform oral sex upon the other, it would seem that both would be guilty of sexual assault upon the other, an apparently absurd result, suggests Banzhaf.

        If they went on while  under the influence of alcohol to mutually engage in ordinary intercourse with both actively cooperating, it’s not clear why only the male should be punished, suggests Banzhaf.

        The problem of determining whether or not there was valid consent under the California standard is further complicated by the fact that, according to the insurance study, "more than 60 percent of accusers were so intoxicated that they had no clear memory of the assault."

        Without such a clear memory, it is hard to see how the triers of fact could determine whether or not there had been an affirmative and unambiguous statement or other sign indicating consent not only to sexual intercourse, but also to the many sexual acts which often precede actual coitus.

        Little attention has been paid to the problems of confusion as well as unfairness if California requires the adoption of a new standard, but only by colleges in the state.  Men who are students are much more likely to be punished if they hook up with a college coed than with a high school grad, and men who no longer attend the college will be free of both criminal and civil liability for having sex with a coed under circumstances where a male who is still a student would face expulsion.

        Female students who date both students and non-students will have to keep in mind two very different standards if they want to protect themselves from date rape, and those who didn’t go to college or who have already graduated will enjoy a much lower and different standard of protection.

        Male students who date both coeds and non-coeds will have to remember to comply with two very different standards, and their dates will likewise have different levels of protection.

        Also apparently not addressed is what would happen if two students from California colleges have sex in another state - e.g., while on spring break - where neither would be liable under that state’s criminal or civil law, but where it would violate the new affirmative consent standard.