‘No’ means ‘No!’ — but what means ‘yes’?

When I was in my law school criminal law class and we were talking about rape, the professor asked, “Where is the line between consent and lack of consent? Does a female actually have to say ‘yes, I agree to have sex with you?’ Or is it consent as long as she doesn’t say ‘no!’?

One student raised his hand. “Are you kidding me?” he said. “If my wife had to say yes every time we had sex, I would still be childless and my wife and I never would have consummated our marriage.” About half the class laughed. The other half stayed silent.

Interestingly, that proposed “yes” standard recently caught on in at least one state. California recently adopted a new law for its publicly-funded schools which requires all universities that receive state money to toss out the old adage of “no means no,” for, in effect, yes means yes.

The bill states:

“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.” 

In other words, if you really want to make sure your girlfriend (or boyfriend) or wife (or husband) doesn’t get mad at you and bring sexual assault charges against you after you break up or get divorced, you should probably get a signed consent form before even starting down that route. If you don’t, and the school’s investigation concludes that she didn’t say “yes,” the school will lose state funding unless they toss you out of school.

Rape, sexual assault, sexual abuse, etc. have always been and will always be sensitive issues—and rightly so. But they also pose unique challenges under the law.

In Utah, the rape statute requires that the state prove that a defendant assaulted someone else without consent and they must also show that the defendant did it knowingly, intentionally and/or recklessly.

Still, the nature of these crimes often come down to one person’s word against another, making sex crimes a situation where the most severe penalties come from the least amount of evidence. Rape is a first-degree felony in Utah, carrying a possible sentence of five years to life in prison. In a murder case, you also face life in prison. But in murder cases, you’ll have eyewitnesses, expert witnesses, forensic evidence etc. Sexual assault cases can, and often do, hinge on one person’s account versus another’s.

As is human nature, juries tend to side with victims. They are given legal instructions and standards and guidelines, but it’s hard to rule out emotion, sympathy and the desire to protect those seen as vulnerable and give them the justice they’re seeking. Not to mention the fact that despite the ideal of “innocent until proven guilty,” most people read past the “alleged” in the media reports and assume the “alleged” incidents are facts and the accused is obviously guilty (and if they deny it, they’re just lying to save face and protect themselves). It is a loaded, sensitive issue that carries with it a lot of legal complications and huge risks.

So, as I said, the best way to avoid it all is to get a signed, notarized consent form before rounding the corner to second base! In all seriousness, though, a word of advice from a defense attorney: Don’t get involved sexually with someone who might have any reason to be embarrassed or ashamed to be involved with you.

The sex cases I handle in which I strongly believe my client is innocent most often involve an accuser who is married, or is a co-worker that doesn’t want the gossip to make her look bad, or is worried about what her religious parents might think, etc. If there is any chance that the person you are about to have sex with will strongly regret that decision and feel like they have to justify what just happened to themselves, their spouse, their boyfriend, their parents, or anyone else, don’t take the risk! If you do, you better know a good criminal defense lawyer and have the money to hire them.

What do you think about California’s ‘yes means yes’ law?  An important step in preventing sexual violence on campus, or a disturbing precedent for government regulation of consensual sex?