Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

CALIFORNIA FIGHTS CAMPUS SEX CRIMES WITH NEW “YES MEANS YES” LAW…AND APP

Hey, remember when “No” meant “No”? Well, unfortunately, people are still committing sex crimes. So, California is going a step further with its enforcement of such crimes. The state’s new rule will be that “Yes means yes”. By statute, in fact.

Such an approach is not really new. I have handled a number of cases where such allegations have arisen on college campuses. Generally, the burden is shifted to the accused to prove that a given complainant gave an unequivocal “Yes” and, virtually, kept repeating that word in order for the sexual contact not to be a sexual assault.

Now, California has defined just when “yes means yes” and it is aimed at college campuses. The state Senate, which unanimously approved the legislation, believes that the new law will change how campus officials investigate sexual assault allegations. Governor Jerry Brown signed the bill shortly after receiving it.

Rather than using the refrain “no means no,” the definition of consent under the bill requires “an affirmative, unambiguous and conscious decision” by each party to engage in sexual activity. It requires all colleges taking student financial aid funding from the state to agree that in investigations of campus sexual assaults, silence or lack of resistance does not imply a green light for sex, and that drunkenness is not an acceptable defense.

By the way, at least in Massachusetts and New York, voluntary intoxication has not been a legal defense to such crimes for quite awhile; Massachusetts colleges have long taken the “yes means yes” position as well.

Nevertheless, Democrat Senator Kevin de Leon, who pushed the bill, proudly announced that “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 .”

Of course, there are nay-sayers. Take Florida international University Professor Emeritus of Psychology Gordon Finley for example. He says, “It is tragically clear that this campus rape crusade bill presumes the veracity of accusers (a.k.a. ‘survivors’) and likewise presumes the guilt of accused (virtually all men). This is nice for the accusers – both false accusers as well as true accusers – but what about the due process rights of the accused?”

The bill further requires colleges and universities to adopt “victim-centered” sexual-assault response policies and implement comprehensive programs to prevent assault.

As we have many times discussed in this blog, however, concerns such as that which voiced by Professor Finley are not usually given much credence. Apparently, acknowledgement that sometimes people are untruthful when they make allegations is about as popular in California as they are in Massachusetts. In other words, they aren’t.

There is a silver lining to the new law, though. Immediately following the new “yes means yes” law, a spanking new app was invented to address it!

The app by Southern California-based Sandton Technologies is said to mean that prospective mates can whip out their phones and record their affirmative consent for piece of mind.

This app, which can be found for both Apple and Google-based devices, asks users the obvious questions. Potential answers include “No. Thanks,” “Yes, but … we need to talk,” and “I’m Good2Go”. It also administers a light sobriety test as well. If the user is found to be inebriated or if they say “I’m wasted”, the app will not allow statements of consent to be recorded.

However, Standton Technologies president Lee Ann Allman is quick to add that the technology does not amount to legal documentation. While the California law says that students accused of rape have to show administrators that verbal or written consent was active at all times, the app isn’t intended to be used as legal evidence.

“We go to great lengths to say it’s not a legal document,” the technology executive claims. “It’s a point of data.”

Attorney Sam’s Take On Campus Sex Crime Investigations

As I mentioned above, California’s approach is not quite as novel as it seems to think. Standton Technologies’ little invention is also of questionable use…whether or not it can be accepted as admissible evidence.

And, by the way, the app developer does not make the call as to whether or not the app can be introduced in a court of law.

What we are seeing, actually, is another step forward in the war against the accused.
It is a boon for the proposition that any accusation of a sexual nature is a valid and truthful accusation. You see, once you take that as a given, you do not have to worry about inconveniences like Constitutional Rights. In fact, it turns the entire process on its head because it erases the fundamental precepts of our system.

But, then again, it is a more popular position than being seen as “soft on crime”.

We’ll discuss this more in my next blog.

For the original stories upon which this blog is based, please go to http://www.usatoday.com/story/news/usanow/2014/08/28/california-bill-yes-means-yes-sex-assault/14765665/. And http://m.laweekly.com/informer/2014/09/30/yes-means-yes-sex-app-is-here and http://www.usatoday.com/story/news/usanow/2014/08/28/california-bill-yes-means-yes-sex-assault/14765665/

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