While there is no shortage of issues to be taken with California’s new “Yes Means Yes” law, one of the fallacies being passed around is that it prohibits sex between intoxicated persons. Indeed, this may well be a purpose to the buzz surrounding the law, as it’s a trope that any woman who is under some undefined state of influence from drugs or alcohol is incapable of giving consent. This lends itself to the notion that she can awake the next day and decide whether the prior evening’s activities were fine or rape.
Hans Bader, who has forefront of keeping tabs on such laws, and their related impacts, asked that I post his letter to the editor to the San Francisco Chronicle (which inexplicably calls itself the SFGate on the interwebz):
“New law redefines consent at college” (Sept. 29) claimed that California’s new “affirmative consent” law regulating college sex “says that a person cannot give consent if they are intoxicated.” But it does not say this. What it actually says is that “consent” is absent when “the complainant was incapacitated” due to alcohol.
Many happily married people have sex after drinking. While some liberal Democrats who sponsored SB967 wanted to ban sex between intoxicated people, the final version of the bill does not do so.
Admittedly, the new law is disturbingly vague in other ways. Its co-sponsor, Assemblywoman Bonnie Lowenthal (D-Long Beach), said, “Your guess is as good as mine,” when asked how an innocent person could prove “affirmative” consent.
Hans Bader, Washington, D.C.
Among the many things we’ve seen with regard to this battle, whether it’s defined as eliminating sexual assault or eliminating personal responsibility, is a strong tendency to deliberately misstate the proscriptions, whether to understate problems with laws that eviscerate due process or to overstate prohibitions to scare young men into believing that they are committing “crimes” when they’re not, or to empower women to believe that “crimes” by men are whatever they want them to be.
As Hans notes, the California affirmative consent law is fraught with problems, so much so that not even its sponsor was capable of enunciating how one would be capable of defending against an accusation. But as bad as it is, let’s not make it worse by allowing the word to spread that it prohibits consensual sex because one or both of the parties involved was intoxicated. That is not what the law prohibits.
Then again, the question remains as to what the California Lege meant by incapacitated. A dictionary definition offers “
So while it’s clearly not a violation of the California law to engage in consensual sex merely because one or both parties have been drinking, it’s not clear where the line is drawn for incapacitated. Whether this means complete incapacitation or whether the lines will be held to be some fuzzy thing, defined by the side with the most adjectives at its command, or by the judge or college tribunal most sensitive to seeing women as human beings fully capable of managing their own lives or too fragile and victimized to take personal responsibility for their actions.
As the sponsor of the law sought to have the line set at intoxicated, so that any woman whose judgment was impaired in any way would have the latitude to deny consent after the fact on account of her volitional conduct, making the man, regardless of his state of intoxication, culpable, the law enacted did not go that far.
The buzz about the law shouldn’t accomplish what the law does not. Yet, this is pale comfort given the ill-defined language, combined with the laws many other flaws.