Commentary on "Yes Means Yes"

“Yes Means Yes” or “No Means No”

(Either way, you get one free shot)

by Michael Weiss, Email:

            Reviewing Dr. Jack Call’s analysis of the 2017 en banc hearing by the Virginia Court of Appeals in Robinson v. Commonwealth of Virginia, regarding whether that case establishes a “consent based” approach to sexual assault cases, and if so, is this approach a “no means no”, or a “yes means yes” standard, there is additional information available in that case that needs to be evaluated before a conclusion can be made.

            Referring to the opinion of the Court, when Robinson twisted the victim’s breasts “as hard as he could”, and held her in that manner for approximately one minute, he used force to accomplish the act of sexual battery. Although the Court does not specifically address whether this force was used to overcome the victim’s will, the victim had previously, on multiple occasions, told Robinson she did not want him to touch her. On at least one occasion prior to the case at hand, Robinson had touched the victim in a sexual way, and Robinson threatened to make the victim and her husband move out of the house “if she said something” about his actions.

            These facts clearly indicate the victim’s will was for Robinson not to touch her at all, particularly in a sexual manner. This had been communicated to Robinson numerous times. Arguably, any force on the part of Robinson at that point, regardless of how slight, overcame the explicit will of the victim. This also implies, at least in this case, a “no means no” boundary had been established. The victim had said no, repeatedly. There is no reason for Robinson to think he had consent (affirmative or implied) from the victim to touch her, for any reason. There is no doubt, however, Robinson had been told “no”.

            What should also be addressed in this review is how the Virginia Legislature has altered the elements of sexual battery in favor of the perpetrator. Prior to 2006, a sexual battery as defined in §18.2-67.4 of the Code of Virginia could be accomplished by sexually abusing the victim through the use of the complaining witness’s physical helplessness.

            Though likely alluding to a victim’s ability (or lack of it) to object to the act due to some physical, mental, or chemical incapacitation, a surprise touching could also be viewed as physical helplessness. §18.2-67.10 of the Code of Virginia defines physical helplessness as “unconsciousness or any other condition existing at the time of an offense…which otherwise rendered the complaining witness physically unable to communicate an unwillingness to act and about which the accused knew or should have known”. A victim who is not anticipating or expecting her intimate parts to be touched can hardly communicate her unwillingness to act. The very nature of the surprise touching indicates the perpetrator knows of the victim’s helplessness. This language, unfortunately, was removed from this statute on March 30, 2006, and is now moot, except for more serious, felonious offenses.

            In April of 2014, language was added to the same statute, requiring, before any conviction, the perpetrator must have sexually abused “within a two-year period, more than one complaining witness or one complaining witness on more than one occasion intentionally and without the consent of the complaining witness…”. This modification affords a perpetrator one free pass every two years, to sexually abuse a person. One could easily understand why a victim of the first occurrence of the sexual abuse might feel as if this statute needs to be changed to include all offenses and all victims, not just the subsequent ones. Until this is addressed, a better course of action might be to charge these perpetrators with §18.2-57, of the Code of Virginia, Assault and battery, in which the elements of force favor the victim, rather than the perpetrator.