California adopts 'yes means yes' sex-assault rule

[Jim Lane]

126. I don't agree.

First, in your example, it's not clear that either of them violated the policy. The law doesn't say expressly that "affirmative consent" must take the form of verbal consent. If there were multiple verbal consents up to third base, followed by conduct on the part of each participant that indicated willingness to go further, that could be deemed sufficient under the law. See my post #20 in this thread (and the follow-up, that at least one DUer thinks the law too lenient because it doesn't require verbal consent).

IIRC the law also doesn't say expressly that there are acceptable forms of nonverbal consent. There's apparently some legislative history to support that interpretation, but if that's what they meant, it would have been better to spell it out.

As for the potential liability of an accuser, a claim of defamation depends on the meaning to be given to the defendant's words. I can say that the Koch brothers are raping me if the context is clear that I'm using "rape" as a metaphor. (I'm not endorsing the metaphorical use but I've seen it used that way.) If the Kochs sued me for defamation, alleging that neither of them ever sexually penetrated me and that I was therefore lying about them, they would lose.

In your example, the student who brought an accusation under a school's policy would clearly be saying that the accused committed acts that violated the policy. If the accused committed acts that violated school policy but did not violate any criminal laws of the State of California, then both defendants win; in the criminal action against the man, he's acquitted, and in his civil action for defamation against his accuser, she wins.

I'm assuming that the tort you're citing is defamation. There is a tort for invasion of privacy but I can't imagine that an accused rapist would be able to prevail on an invasion of privacy claim against his accuser. Do you have some other tort in mind besides those two?

ETA: I thought of a couple other torts. Some jurisdictions allow an action for intentional infliction of emotional distress. That's obviously subject to huge abuse, though -- courts don't want to hear a parade of cases that amount to saying "he did something that made me unhappy." (DU all by itself could clog a court's docket.) Therefore, it's very, very narrowly limited. "After we hooked up at that party, her accusation against me made me unhappy" wouldn't begin to cut it unless the California standard differs radically from New York's. (Caveat: I'm a lawyer but licensed only in New York. I'm sure there are areas where California law is quite different but I really doubt that California courts would entertain a tort claim under those circumstances.)

The other tort I thought of is abuse of process. That's a common-law tort that depends on using the process of a court in an improper way. I don't think it would apply to proceedings before a university grievance committee or whatever entity hears complaints about violations of a school's sexual assault policy. Even if it does, an abuse of process claim would fail if the defendant (the person bringing the accusation of sexual assault under the school policy) wasn't making a false accusation, because the plaintiff (the person accused of sexual assault) had violated the school policy even if he didn't violate the criminal law.