Beach Seeks to Establish ‘Yes Means Yes’ Standard In Evaluating Sexual Assault Cases on College Campuses

Senator James Beach addresses his new colleagues in the Legislature.

TRENTON – Responding to the national epidemic of sexual assaults on college campuses, Senator Jim Beach today introduced legislation to require all colleges and universities in New Jersey to adopt an affirmative, ‘Yes Means Yes’ standard in their campus sexual assault policies, to be used in determining whether sexual activity was consensual.

Modeled after a first-in-the-nation law signed last month by California Governor Jerry Brown, the bill would require that in order to receive state funds for student assistance programs, colleges and universities must adopt an affirmative consent standard in their sexual assault policies. The standard would be used in investigations of sexual assaults to determine whether both parties gave consent to sexual activity. The ‘Yes Means Yes’ approach seeks to replace the often cited ‘No Means No’ slogan which has been used in campaigns for sexual assault prevention, and that advocates say placed the burden on victims to prove they resisted. “Affirmative consent” is defined in the bill as affirmative, conscious and voluntary agreement to engage in sexual activity. Lack of protest or resistance does not mean consent, nor does silence, the bill states.

“This approach shifts the way sexual assault cases are investigated, and will change the way that rape is discussed and treated on college campuses,” said Senator Beach (D-Camden). “It will create a more supportive environment and get rid of the notion that victims must have verbally protested or physically resisted in order to have suffered a sexual assault. This is about better protecting young people and changing the culture at our colleges and universities.”

In order to receive state funds for student assistance programs, colleges and universities would have to adopt policies concerning sexual assault, domestic violence, dating violence and stalking involving a student, both on and off campus. The bill would require that in evaluating complaints in a disciplinary process, it would not be a valid excuse that the accused believed that the complainant consented to the sexual activity if he or she knew or reasonably should have know the complainant was unable to consent because he or she was asleep or unconscious, incapacitated due to the influence of drugs, alcohol or medication so that the complainant could not understand the fact, nature, or extent of the sexual activity, or the complainant was unable to communicate due to a mental or physical condition.

In addition, it would not be a valid excuse that the accused believed the complainant consented (1) if the belief in affirmative consent arose from intoxication or recklessness of the accused; or (2) the accused did not take the reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented. The bill would also require a policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

“We have to change the discussion about what constitutes sexual assault, particularly on college campuses where it is so pervasive. This will begin to change the culture of acceptance of sexual activity under certain circumstances, such as when students are intoxicated, and create an environment in which clear affirmative consent is the standard,” said Senator Beach. “As part of this effort, we also must improve education and outreach on campuses, and create a more supportive environment for victims so they feel empowered to come forward.”

The bill would also require that higher education institutions adopt detailed and victim-centered policies and protocols concerning sexual assault, domestic violence, dating violence and stalking involving a student that comport with best practices and current professional standards.  It would require partnerships between the institutions and on-campus and community-based organizations, including rape crisis centers, to refer students for assistance. A prevention and outreach program to make students aware of policies would also be required and outreach made part of incoming student orientation.