This past year Governor Brown signed into law SB 967 – the so called “yes means yes” law. So what does this mean? In truth, it does very little to change the law. It does not change the Penal Code or the burden of proof in a criminal case. It does not change the fact that before having sexual contact with another person, consent is required. In fact, all it really does it put the issue of sex and non-consensual conduct on college campuses into the headlines and will hopefully educate students about the importance of having knowledgeable, consensual and protected sex.
There is no question that drugs and alcohol have factored greatly into the number of reports of non-consensual sex in college. Young people, who are inexperienced, drink too much, have sex, and then regret it the morning after. Worse are the situations where people intentionally take advantage of the “drunk girl” or even worse forcibly assault another student. The take away from “Yes means yes” is that drinking and getting drunk is not a license to have sex. The importance of having a frank and open discussion about whether or not to have sex is now critical before engaging in any type of sexual activity. Not only is this what the law now demands, but it is also good manners and can avoid a lot of very nasty consequences down the road. It protects everyone. Just because you can does not mean that you should.
So what can happen if you have sex on a college campus after a night of drinking? There are three (3) potential legal consequences that can occur if you are accused of a non-consensual sexual encounter. First, it will be reported to the police. It will be investigated and you might be arrested and charged with rape or some other similar offense. Second, the University will have its own investigation. The rules are vastly different and in truth, as the accused you have very few rights beyond notice of the allegation and a “hearing”. This hearing does not allow you to cross examine your accuser, does not grant you subpoena power to force the attendance of witnesses that might be able to help you and does not allow you to have a lawyer present during the “hearing”. Finally, you can be sued in civil court for money damages.
Without a doubt, it is critical that you contact an attorney immediately if you hear that any kind of allegation of sexual misconduct is being made. The school will tell you that you cannot have an attorney for their hearing. You can have a non-attorney advisor. But understand that your conversations with this non-attorney advisor are NOT privileged. This non-attorney advisor can be called to testify about what you told them. The only way for you to have a privileged conversation that cannot be repeated is to talk to a licensed attorney. Also, if you testify at the school “hearing” that can be used against you in a criminal or civil proceeding. This can be a mess.
Talk to a lawyer first. This can save you a lot of money and heartache down the road while you determine what the best way is to handle all of these issues. Talk to an attorney who understands how all of these parts fit together and can advise you on the best way to have a favorable outcome.