By Freya Strasburg
Although I am an avid supporter of many feminist bills that are currently going through California legislation, I have to disagree with the newly enacted “Yes means Yes” bill. The media has been abuzz trying to cover this bill, but there has been no publicized discussion about its flaws. The two main issues that I see with this bill are that it will have no real effect on the way that sexual assault cases are legally tried and that the idea of “consent” is still vague and ambiguous. These two issues are essentially intertwined because sexual assault cases are still a “he said she said” issue, and, because consent is not defined in this bill, no real change will happen in courtrooms.
The idea of consent, as outlined in this bill, states that both sexual partners must receive an explicit “yes” before engaging in any form of sexual activity. However, according to the bill, the “yes” may be in the form of a nod or a smile, and does not have to be verbal. How can a nod or smile be an explicit agreement to sexual activity? It can’t, and frankly it is nonsensical to think that this could ever constitute consent for sexual activity. The entire reasoning behind the idea of non verbal consent undermines the entire goal of the bill to provide explicit agreement.
This brings us to issue number two, which is that the majority of rape and sexual assault cases come down to a “he said, she said” version of events which tends to favor the victim. While the intentions of this bill are good natured, the effects will actually harm an already flawed system because of the vague idea of consent within this bill. The whole “he said, she said” issue will not be resolved because it will still come down to two separate stories in court involving if consent was verbally given. Essentially, the only difference that will occur is that instead of the prosecution arguing that the victim said no, they will be arguing that the victim did not say yes. The change will only be one insignificant word.
Another legal issue within this bill is that it shifts the burden of proof from the prosecution to the defense which undermines the entire American legal system. This will set a dangerous precedence for the future of legislation regarding sexual assault and could have potentially disastrous consequences within the entire legal system.
Proponents of this bill believe that there will be a dramatic decrease in sexual assault on college campuses but, this is a naive viewpoint because the vague idea of consent will still prevail and will have no real effects. However, the one attribute about this bill that garners justified support is the legislation requiring colleges and universities to provide sexual assault centers and hotlines. I completely agree with this aspect of the bill, yet I believe that this part of the legislation could have been more effective if it was its own separate bill. Separately it could have had a greater impact, and would not have been buried under the media attention surrounding the consent issue. Help centers, education about sexual assault, and counseling is what the senate should be focusing on and therefore this part of the bill is completely justified.
In total, I believe that there are more effective ways to curb sexual assault on college campuses that will accomplish a lot more than this bill will. For example, since almost half of sexual assault cases include alcohol consumption by one party, colleges should crack down on underage drinking and excessive binge drinking on campuses in order to decrease rape cases. Although the intentions of this bill are positive, the effects will be non-consequential and could set precedent for serious issues within the American justice system.
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