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CALIFORNIA LAW REGARDING AFFIRMATIVE CONSENT AND SEX CRIMES

 

In 2014. Governor Jerry Brown signed into a law what is known as “active consent.” This law, incorporated in the California Education Code, applies to California campuses and has often been referred to as the “yes means yes” law. The law requires any post-secondary educational institution that receives state funds for financial student assistance—and basically that means almost every university, college, junior college, or trade school in the state—to enact an “affirmative consent” policy. The affirmative consent policy, as its name implies, means that before there is any sexual activity involving a student there must be ongoing conscious consent. Furthermore, the policy must stipulate that a person cannot give affirmative consent if he or she under the influence of drugs or alcohol to the extent that the nature of giving consent could not be understood. The law does not provide for criminal sanctions but you can easily see how this can be a slippery slope to rape charges.

And that is exactly where this story goes: Two USC undergrads “hooked up” at a club in the wee hours in the morning on April 1st of this year; both were drinking. They ended up in the young woman’s dorm room. Several days later the young man found himself arrested by the Los Angeles Police Department on charges of rape by use of drugs and sexual penetration by a foreign object. The sexual assault was characterized in some newspaper articles as “shocking.”

Apparently, the young woman’s roommate walked into the dorm room in the middle of the alleged assault and the young man left at that point. The young woman reported the sexual assault to USC authorities and told police that she did not remember the encounter. Perhaps she did not.

Several months later the young man faced a preliminary hearing before the Los Angeles Superior Court. The judge dropped all the charges. Why? Video emerged that showed the alleged victim leading the young man out of the club hand-in-hand and calling an Uber that she led him into. In the video, they both appear quite inebriated. Video footage at her dorm shows the alleged victim swiping her access card and allowing the young man inside. After viewing the footage, the judge found a “very strong indication” that it was the young woman who initiated the tryst. The prosecutor indicated that the charges will not be refiled.

But the young man still faces many consequences for what may have been just an unfortunate decision. A student misconduct investigation is proceeding under the university’s affirmative consent policy. He was expelled from his fraternity after the arrest. The young man is he is a student from Mumbai, India and his arrest was posted in many Indian publications. Perhaps most distressing in the long run is that his arrest for sexual assault will remain on his record and the only way to get that removed is to have a judge agree that he should have never been arrested in the first place by filing a motion for a finding of factual innocence.

This brings up some thorny questions. The young man maintained that there was consent and it’s merely one person’s word against another. The young woman was clearly drunk before she even brought the young man to her dorm. Under the affirmative consent law, she could not consent. Should the young man have declined to follow her into the Uber and to her dorm room since she was clearly inebriated? Well, he’d certainly be the better off for it if he did. But remember, he was drunk too. If she is not capable of giving consent due to inebriation, is he somehow conscious enough to decline if he is equally inebriated? These ambiguities often arise in sex crime cases and the young man is lucky he had a defense attorney who was diligent and persistent; the video tapes stood between him and a potential ten years in prison.

If you have been charged with any sex crime, contact Orange County criminal defense attorney William Weinberg for a free consultation about the charges. You can reach him at his Irvine office at 949-474-8008 or by email at bill@williamweinberg.com.