Our friend Hans Bader, a former official in the Department of Education’s Office of Civil Rights who handled Title IX violations, writes at Liberty Unyielding about the potential legal consequences of California’s new “Yes Means Yes” Law:

State-mandated dirty talk in California: Governor signs unconstitutional SB 967

Last month, California Governor Jerry Brown signed into law a bill regulating college students’ romantic lives, which I discussed earlier. This misleading “affirmative consent” law, SB 967, appears to require “agreement” to each form of “sexual activity” a couple engages in on campus, without defining what “sexual activity” is. In the words of one of its supporters, it thus requires “state-mandated dirty talk” during sexual encounters. (Some colleges with “affirmative consent” policies classify even ordinary “kissing” as “sexual activity” that can constitute “sexual assault,” notes Ramesh Ponnuru at Bloomberg News, while other colleges define it to include little more than sex and penetration. Colleges have since adopted rules modeled on SB 967 stating that consent to one activity cannot imply consent to other activities, potentially requiring people to engage in a series of discussions as they move from kissing to foreplay to sex).

This “agreement” requirement is misguided: There are lots of things in this world that I like, and view as consensual, that I never “agree” to, such as when my daughter suddenly hugs me without asking for permission, or my co-workers surprise me by leaving a snack on my desk. “Agreements” are for dry legal contracts, not warm, spontaneous human interactions. But now, you have to reach on “agreement” on everything, which could lead to some very uncomfortable conversations in the bedroom.

Ezra Klein, a former Democratic operative and leading supporter of the new law, says it will define as guilty of sexual assault people who “slip naturally from cuddling to sex” without a series of agreements in between, since

It tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test.

The Yes Means Yes law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value.
. . .

If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent.

This is the case against it, and also the case for it. . . . men need to feel a cold spike of fear when they begin a sexual encounter. . . To work, “Yes Means Yes” needs to create a world where men are afraid.