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Policy: Law

5 problems with California's 'affirmative consent' bill

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Beltway Confidential,Opinion,Education,Crime,California,Ashe Schow,Law,Higher Education,Due Process,Campus Sexual Assault

In the rush to advance legislation to combat sexual assault on college campuses, California lawmakers have cast aside the due process rights of the accused. As a result, more college men could find themselves unfairly branded as rapists.

On Monday, the California Assembly overwhelmingly passed S.B. 967, a bill that would apply a uniform definition of sexual consent to all colleges and universities that receive state funds.

The law is being pitched as a way to ensure the safety of college students. But instead of merely making sure that all accusations of rape are treated seriously, it creates a standard that stacks the deck against the accused.

1. A vague definition of consent

The way this bill defines “affirmative consent” could open the door to a flood of sexual assault accusations, but provides no clear way for the accused to prove they obtained consent.

The bill requires both parties involved in sexual activity to provide an “affirmative, conscious, and voluntary agreement,” and stipulates that a “lack of protest or resistance does not mean consent, nor does silence mean consent.”

Further, the bill requires consent to be “ongoing throughout a sexual activity and can be revoked at any time.” And just because a couple has a prior dating history or has engaged in sexual activity previously “should never by itself be assumed to be an indicator of consent.”

So what specifically constitutes consent? The bill leaves the door open for non-verbal consent to be accepted, as George Mason University School Of Law professor David Bernstein noted in the Washington Post, but provides no tangible way to prove that consent — verbal or non-verbal — was obtained.

In fact, asked in June, the bill’s principal co-author, Assemblywoman Bonnie Lowenthal, D-Long Beach, had no clue how one could prove they received affirmative consent.

“Your guess is as good as mine,” Lowenthal told the San Gabriel Valley Tribune. “I think it’s a legal issue. Like any legal issue, that goes to court.”

But if one of the bill’s co-sponsors can’t explain how to prove one obtained consent, how is a college student supposed to figure it out?

K.C. Johnson, a history professor at Brooklyn College and City University of New York who co-wrote a book about the 2006 Duke lacrosse rape case, told the Washington Examiner that the only way college students could truly prove they obtained consent would be by “recording the entire sexual encounter."

Of course, Johnson noted, “such a recording could in and of itself violate criminal law and college policies.”

As for ensuring that consent is “ongoing,” Johnson said “California students would be wise to interpret the measure as stringently as possible — that is, there must be consent for every single stage of the activity.”

And Johnson believes that consent would have to be verbal, since colleges and universities could claim the accused “misinterpreted a non-verbal cue.”

2. How intoxicated is too intoxicated?

The bill states that consent was not obtained if the accused “knew or reasonably should have known” the accuser was “incapacitated due to the influence of drugs, alcohol or medication, so that the complainant could not understand the fact, nature or extent of the sexual activity.”

In theory, the language gives the accused an avenue of defense. But recent cases suggest that those who are accused cannot count on being able to fall back on the reasonably aware standard.

Johnson says this would be another instance where students should assume the most stringent interpretation of the California bill.

“[I]t seems to me that a prudent student would have to assume that if his partner consumes any amount of alcohol, he could be deemed a rapist under this standard — since, at least theoretically, the partner could be someone who (say) has never had anything to drink, or who has extreme sensitivity to any type of alcohol, and becomes intoxicated after drinking only a small amount,” Johnson said.

The bill doesn’t say whether the blood-alcohol level used to determine whether someone can legally drive would be the same standard for obtaining consent, but perhaps college students should start carrying breathalyzers just in case.

3. Preponderance of evidence

The “preponderance of evidence” standard means that an accuser has to be just 50.01 percent believable in order to convict instead of the criminal standard of “without a reasonable doubt" — an extremely low threshold for establishing guilt.

4. Focuses on “victim-centered” policies, but neglects the accused

The bill establishes several “victim-centered polices and protocols” that each college should adopt. Many of them are common-sense and responsible, such as interviewing the accused and finding witnesses.

The text also calls for connecting students with “victim advocates and other supporting people,” which are good resources, considering that much of the current sexual assault issue results from accusers not feeling comfortable reporting incidents. Steps taken to foster an environment where those who have been victimized feel safe reporting a crime should be encouraged.

But the bill doesn't include provisions to make sure those who are accused are aware of their rights.

5. Could pave the way for more litigation

This bill tells universities that they must adhere to the affirmative consent standard and set up sexual assault outreach programs or risk losing state funds.

But because the bill doesn’t address due process for the accused, it opens the door for more lawsuits against universities from students who think they were wrongly accused and/or wrongly convicted, which could end up costing the universities hundreds of thousands — if not millions — of dollars.

The offices of several California state senators and assemblymen who were listed as co-authors on the bill told the Examiner to direct questions about the specifics of the bill's language to state Sen. Kevin de Leon, the principal author. Aides for the senator provided the Examiner with a press release, but did not answer questions related to clarifying the definition of consent under the bill.

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Author:

Ashe Schow

Commentary Writer
The Washington Examiner

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