Wednesday, July 2, 2014

California's much-maligned proposed "affirmative consent" law is amended in ways that are positive for the accused

For sexual assault cases on college campuses, California's much-discussed SB-967 would require the use of the low “preponderance of the evidence” standard (50.01% likelihood) and mandate that “affirmative consent” be ongoing throughout a sexual encounter. The Foundation for Individual Rights in Education (FIRE) condemned the bill when it was introduced, calling it "a confusing and legally unworkable standard for consent to sexual activity." The co-author of the bill in the state Assembly, Assemblywoman Bonnie Lowenthal, D-Long Beach didn't help matters when she was asked how an innocent person was supposed to prove consent under the new law:.“Your guess is as good as mine," she said.

The bill was approved by the State Senate and was sent to the state Assembly. Two weeks ago, the bill was amended by the Assembly Higher Education Committee and was referred to the Assembly Appropriations Committee.

The latest amendment of the bill continues several critical flaws. It still doesn't explain how "ongoing" affirmative consent is supposed to be evidenced. (Common sense suggests this should not be difficult to determine:  for example, if the parties have mutually consented, though words or conduct, to have intercourse, once the act has begun, it would be silly to require the parties to continually ask each other, "Is it okay to proceed?" The act should stop when one party tells the other party to stop. Unfortunately, the Star Chamber college disciplinary process can't be counted on to exercise common sense.) Moreover, making the low "preponderance of the evidence" standard state law is problematic for all the reasons we've been writing about for several years. In addition, the absence of any provision in the proposed law for due process for the accused is an omission of Biblical proportions. If that were not sufficient to demonstrate the bias behind this bill, consider the fact that the word "victim" is repeatedly used instead of "accuser" or "alleged" victim.

Nevertheless, recent amendments to the bill are positive indications that the bill may not be as irrational as its detractors suggest. As it now reads, the bill seems more an attempt to appease anti-sexual assault zealots with window dressing while not doing much to alter the status quo. Consider the following:

The most important amendment changed some very troubling language in the Senate's version of the bill. The Senate's bill contained the following: "It is the responsibility of the person initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity."

In a culture where males are expected to be the initiators of sexual activity and females are expected to be reticent about engaging in sex, putting the onus on the "initiator" alone to insure that consent exists for the entire endeavor seemed to be a thinly veiled signal that the new law was intended to police male behavior.

The amendment passed by the Assembly Higher Education Committee two weeks ago changed the Senate's language. It makes clear that the responsibility for insuring the other party consents is on both participants: "It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity."

With this amendment, if the male fails to inquire if it's okay to proceed, he is no more responsible for sexual assault than the female if she fails to inquire. Any application of the new law that puts the onus solely on the male to insure that ongoing consent is present would be grounds for legal challenge.

This is important because so much sex policing on campus is premised on the antiquated belief that sex is something men do and that women have done to them. Brett Sokolow of NCHERM recently tried to dispel that notion by cautioning colleges that when a man and a woman engage in mutually tipsy sex, the school can't single out the guy for discipline because that's sex discrimination. Ironically, just a few weeks before Mr. Sokolow wrote that, that very same position was attacked by numerous feminist pundits when it was posited by a conservative Wall Street Journal writer. Similarly,  Duke University Dean of Students Sue Wasiolek recently was asked what would happen if two students got drunk to the point of incapacity, and then had sex. "Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex," said Wasiolek.

When the bill was first introduced, contrary to what some believe, it did not define "affirmative consent" to require verbal assent. It did, however, caution that "relying solely on nonverbal communication can lead to misunderstanding."  Thankfully, that cautionary language was long ago removed and not even the latest senate version contained it. Consent can be manifested in any manner, whether by words or conduct.

The amendment passed by the state Senate this past May defined "affirmative consent" as "an affirmative, unambiguous, and conscious decision . . . ."  But in the more recent amendment by the Assembly Higher Education Committee, “Affirmative consent” is defined as meaning "affirmative, conscious, and voluntary agreement to engage in sexual activity." The word "unambiguous" has been removed. The latest amendment does little, if anything, to alter the time-honored meaning of consent.

The initial bill first introduced contained this troubling language: "The existence of a dating relationship between the persons involved, or the fact of a past sexual relationship, shall not provide the basis for an assumption of consent."

This wording was problematic because the parties' historical patterns of sexual interaction can, of course, provide critical indicia of consent. Anyone in a long-term sexual relationship with another person understands that.

The Senate changed that language, and the latest amendment by the Assembly Higher Education Committee adopts the Senate's language: "The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent." (Emphasis added.)

The critical addition are the words "by itself," suggesting that the parties' past practices may be considered as a factor, but not the sole factor, in concluding that consent has been given.