Students on both public and private college campuses must get “affirmative consent” before engaging in sexual activity, according to a bill passed unanimously the California legislature. The bill awaits Governor Jerry Brown’s signature.

California Senate Bill 967, also known as the “yes means yes” law, makes clear that all colleges taking student financial aid funding from the state must agree that in the course of conducting investigations of campus sexual assaults, silence or a lack of resistance or consent given under the influence of alcohol and/or drugs does not equal consent to sexual activity. The bill states that “‘affirmative consent’ must be affirmative, conscious, voluntary and ongoing throughout a sexual activity and can be revoked at any time.” The proposed law also states that the existence of a dating relationship between the persons involved, or the fact of a past sexual relationship, should never by itself be assumed to be an indicator of consent.

The bill’s sponsor, Senator Kevin de Leon, D-Los Angeles, called the proposed new law a paradigm shift and stated, “It is very difficult to say no when you’re inebriated or someone slips something into your drink. If the Governor signs it, this will lead the entire country, the nation.” The “affirmative consent” standard established by the bill makes both parties responsible for ensuring in advance that a sexual act is desired. The bill shifts the burden away from requiring alleged victims to prove that they had clearly conveyed that they did not want to engage in sexual activity. Lack of protest or resistance does not mean consent, nor does silence.

“With this measure, we will lead the nation in bringing standards and protocols across the board so we can create an environment that’s healthy, that’s conducive for all students, not just for women, but for young men as well too, so young men can develop healthy patterns and boundaries as they age with the opposite sex,” de Leon said before the legislative vote.

While the proponents of the bill have convinced the California state legislature to support the measure, several critics of the proposed legislation have expressed strong opposition. National Coalition for Men spokesman Gordon Finley stated that the proposal will lead to “too many punitive situations for young men.”  Finley asserts that Governor Brown should not sign SB-967, saying, “This is nice for the accusers — false accusers as well as true accusers — but what about the due process rights of the accused.”

 

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Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.