Big surprise: 'Yes means yes' policies not quite working out as planned

It's been about a year since California governor Jerry Brown signed into law the ludicrous "yes means yes" policy for sexual consent on college campuses. 

And, as opponents predicted, the policy not only isn't working as planned, but is being successfully challenged in court by male students unable to prove they received "consent" from the female – even though that turns on its head the standard of the accused being innocent until proved guilty.

Washington Examiner:

One recent ruling, limited in scope but broad in its potential ramifications, addressed the yes-means-yes policies head-on. Judge Carol McCoy addressed two of the biggest concerns shared by opponents of yes-means-yes — the burden of proof being shifted onto the accused, and the nearly impossible task of proving such consent was obtained.

McCoy overturned a University of Tennessee-Chattanooga ruling that a student accused of sexual assault failed to prove he did obtain consent. Of course, such proof could not be obtained, as there are very few ways — and even fewer legal ways — to provide such proof.

"Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party's consent strains credulity and is illusory," McCoy wrote.

To be fair, there is nothing in yes-means-yes — sometimes known as affirmative consent — policies that require schools to shift the burden of proof onto accused students. But in practice, that's what happens, just as it did at UTC. As McCoy pointed out, accused students "must overcome the presumption inherent in the charge that the violation has been established." Simply denying the allegation is seen as "insufficient." The accused then becomes responsible for proving "the converse of what is taken as true and credible, i.e., the complainant's statement that no consent was given."

And he — it is almost always a he — must do so without witnesses or video of the event. That's a high bar for an accused student, who is often blindsided by the accusation weeks, months or even years after the encounter happened.

Yes-means-yes policies require both parties to obtain consent from each other in order to engage in sexual activity. But in practice, the accusing student is absolved from obtaining consent once the accusation is made, which retroactively puts the onus on the accused to have obtained consent. Sometimes these policies require the initiator of the sexual activity to be the one who must obtain consent. But again, the accuser is absolved of such responsibility once an accusation is made.

The Examiner goes on to describe an encounter where both parties were drunk and witnesses say the woman initiated sexual contact.  But because the woman made the accusation first, the man was truly stuck.  He tried to file a counter-claim of the woman not getting consent, but it was dismissed because he had already been accused!

There is no more "he said, she said."  There is only "she said it, so it's true."  How many young men's lives are going to be ruined by vengeful or mentally unstable women who accuse them of something they didn't do while making it impossible for them to defend themselves?

It's been about a year since California governor Jerry Brown signed into law the ludicrous "yes means yes" policy for sexual consent on college campuses. 

And, as opponents predicted, the policy not only isn't working as planned, but is being successfully challenged in court by male students unable to prove they received "consent" from the female – even though that turns on its head the standard of the accused being innocent until proved guilty.

Washington Examiner:

One recent ruling, limited in scope but broad in its potential ramifications, addressed the yes-means-yes policies head-on. Judge Carol McCoy addressed two of the biggest concerns shared by opponents of yes-means-yes — the burden of proof being shifted onto the accused, and the nearly impossible task of proving such consent was obtained.

McCoy overturned a University of Tennessee-Chattanooga ruling that a student accused of sexual assault failed to prove he did obtain consent. Of course, such proof could not be obtained, as there are very few ways — and even fewer legal ways — to provide such proof.

"Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party's consent strains credulity and is illusory," McCoy wrote.

To be fair, there is nothing in yes-means-yes — sometimes known as affirmative consent — policies that require schools to shift the burden of proof onto accused students. But in practice, that's what happens, just as it did at UTC. As McCoy pointed out, accused students "must overcome the presumption inherent in the charge that the violation has been established." Simply denying the allegation is seen as "insufficient." The accused then becomes responsible for proving "the converse of what is taken as true and credible, i.e., the complainant's statement that no consent was given."

And he — it is almost always a he — must do so without witnesses or video of the event. That's a high bar for an accused student, who is often blindsided by the accusation weeks, months or even years after the encounter happened.

Yes-means-yes policies require both parties to obtain consent from each other in order to engage in sexual activity. But in practice, the accusing student is absolved from obtaining consent once the accusation is made, which retroactively puts the onus on the accused to have obtained consent. Sometimes these policies require the initiator of the sexual activity to be the one who must obtain consent. But again, the accuser is absolved of such responsibility once an accusation is made.

The Examiner goes on to describe an encounter where both parties were drunk and witnesses say the woman initiated sexual contact.  But because the woman made the accusation first, the man was truly stuck.  He tried to file a counter-claim of the woman not getting consent, but it was dismissed because he had already been accused!

There is no more "he said, she said."  There is only "she said it, so it's true."  How many young men's lives are going to be ruined by vengeful or mentally unstable women who accuse them of something they didn't do while making it impossible for them to defend themselves?