It should not need to be stated, but in the current political climate, it does: Rape is a heinous crime, and rapists should be severely punished. Generally speaking, the criminal law does that, but it does it with the traditional protections of due process. Due process is too much trouble and takes to long to satisfy proponents of “yes means yes.” So, among other things, they wish to shift the burden of proof from the accuser to the accused. Coupled with the he-said, she-said nature of these encounters, an accused person has little chance of acquittal.
[A]s Mark J. Werksman of the Law Firm of Mark J. Werksman and Associates points out, this new standard puts the burden of proof on the accused. When [California politician] Bonnie Lowenthal was asked how an innocent person could prove consent under the new standards (short of having a written contract with notarization), her reply to the San Gabriel Valley Tribune was, “Your guess is as good as mine.”
Your-guess-is-as-good-as-mine is a chilling prospect to people who may be falsely accused of rape. See also this.
This issue has been percolating through the web for some time and even led to this amusing video:
Maybe a few people chuckled, but yes-means-yes proponents were not deterred. Recently on the web, we saw a proposed form of contract to evidence consent:
Though no doubt intended to show the new standard is a joke, I find the proposed contract inadequate to the task and offer an example that is closer to dealing with the issues raised by “yes means yes:”
The link is to a PDF. I encourage readers to pull it up, read it, weep, and contemplate the absurdity. And yet “yes means yes” raises all the issues addressed in the contract as well as many more I no doubt overlooked. Upon reflection, however, I realize that one of the shortcomings of the form is that it presupposes only two people are involved. I guess I’m old.
For those with no sense of humor, this post does not create an attorney-client relationship and is not a solicitation of clients. I have no interest in drafting such contracts in real life, I have no access to a breathalyzer, and I have no handy list of voyeurs to stand by to testify about alleged revocations of consent. The point of this post is to point out the absurdity of “yes means yes.”
Remember that rape is not the only serious crime. Murder is usually regarded as quite serious, yet we still afford due process to accused murderers. The need to point that out shows how skewed things have become.
Update July 17, 2015:
When I wrote the above post and linked contract, I was not aware of this site. Good grief. I do see that it covers something I certainly should not have overlooked: VD.