The “Yes Means Yes” bill was a big deal when Jerry Brown, the governor of California, signed it into law in 2014. Among other things, it made California the first state to pass an “affirmative consent” law (New York and Connecticut followed), which lays out rules for college students to engage in ongoing agreement while having sex. Essentially, it requires all parties to get consent for each touch each time; silence can not be interpreted as consent. Now, it seems, Brown is not so certain about what has been wrought. This week, in an unexpected move, Brown vetoed a new bill that would have broadened the definitions and rules regarding alleged sexual misconduct for students attending California colleges and universities.
The now-defunct bill would have codified into law controversial guidance issued by the Obama administration’s Department of Education on Title IX—the federal law that forbids gender discrimination in education. Some of that Obama-era guidance was recently rescinded by Secretary of Education Betsy DeVos, who said it had created a “failed system,” one that has not brought fairness either to accuser or accused. In a letter explaining his veto, Brown wrote he could not endorse the bill because of troubling concerns that have arisen in recent years. He noted that since he signed Yes Means Yes, “thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault—well-intentioned as they are—have also unintentionally resulted in some colleges’ failure to uphold due process for accused students.”