Senate Sexual Assault on Campus - CA's affirmative consent law

sb 967 passed in California requiring CA universities and colleges to adopt an "affirmative consent" standard in their sexual assault policies requiring:

1) an affirmative, conscious, and voluntary agreement to engage in sexual activity.... Lack of protest or resistance does not mean consent, nor does silence mean consent. 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.

2) a policy that...it shall not be a valid excuse...that the accued believed that the complainant consented to sexual activity [if either]

(A) belief in affirmative consent arose from the intoxication or recklessness of the accused

(B) the accused did not take reasonable steps...to ascertain whether the complainant consented.


View this in light of former GWU president's controversy over his remarks concerning female alcohol consumption:

On its face, this comment makes a certain amount of sense. At least 50% of sexual assault cases involve alcohol, and binge drinking culture on college campuses is a real problem that causes a host of problems relative to sex, including diminishing good decision making about practicing safe sex and leading to greater STD transmission, not to mention the start of a lifetime of alcoholism for some people.

Taken in context, Dr. Trachenberg's comments are maybe much more offensive, since they follow his defense of male fraternities and male drinking culture.

But as a whole, while I agree mostly with the language of the statute, I also believe that everyone has some level of affirmative duty not to put themselves into dangerous situations by binge drinking in an inherently sexually charged situation, like a fraternity party, where one of the main points of drinking alcohol in excess is to facilitate sexual encounters.

 

I can agree with the intent of the statute, but I think it will be very problematic because it is written to be too overbroad. The biggest problem I see with it is that it is requiring colleges to enforce this standard, rather than applying across the board to everyone.

Colleges (particularly state-run schools) simply should not be in the business of conducting pseudo-criminal prosecutions, especially when their procedures almost always lack basic due process protections. If someone is accused of sexual assault, then it should be up to the police to investigate and the local prosecutor to prosecute, with all of the civil rights and protections that the criminal system affords (particularly the rights to an attorney, to face your accuser, and the requirement to be found guilty beyond a reasonable doubt). At some schools, the mere allegation is sufficient to get someone expelled, because they use a "preponderance of the evidence" standard, that means that it just has to be more likely than not that it wasn't consensual. Often, the accused student is not allowed any legal counsel, isn't allowed to see the evidence against him prior to any hearing or cross examine any witnesses, and is then expected to provide any sort of defense against the charges. It's as though the procedures are designed to throw due process out the window.

I am not saying this to minimize sexual assault in any way. I have a good friend from high school that was raped last month, and my wife and I have been trying hard to help her through the trauma that she is going through. (It's not easy because she lives 2 hours away from us.) I have no tolerance for sexual predators of any kind. But I also have no tolerance for violating people's rights, even in the name of a worthy cause.

If something is rape or sexual assault, then it's rape or sexual assault, regardless of whether or not the individuals involved are college students. There shouldn't be one standard for college students (used to destroy their lives on flimsy evidence), and another standard for everyone else. If it's a criminal act, then it should be handled by the police and local prosecutor's office, not by the college. (I have no problem with the college expelling a student who is convicted of a crime, and even offering reasonable accomodations to things like meeting the terms of restraining orders to prevent the accuser and alleged attacker from interacting, but they should not be performing judicial functions because they aren't a judicial system.)

As I said above, I can agree with the intent of the law, but I really don't trust it to be applied in a proper manner with respect for due process and the rights of the accused. When many colleges already heavily stack the deck against the accused in a "he says/she says" situation, this law doesn't strike me as a good idea in practice.

 

Alcohol abuse is much of the problem lurking behind on campus sexual assault, and I think it's a practical understanding of that situation that made university sexual assault policies what they were. In many of these cases, no criminal prosecution could have been successful, but rather than sweep these cases under the rug, student activism and the Obama administration have forced the issue.

Kimball, I also don't believe that the same standards off due process as a criminal prosecution are necessary when all that is at stake is the ability to attend a particular university. I also agree however that mere accusation shouldn't be enough to get a kid expelled. Several universities have now adopted policies of independent third party investigation of claims, and hopefully that will help standardize the evidentiary standards that will be applied.

 

The problem with that is that often, it's not simply expelling them from that university. It will also often prevent them from attending most other universities, too.

That is a particular problem when the expelling university is a state-run institution, which is supposed to protect the individual's constitutional rights. Due process shouldn't be thrown out the window simply because "all that is at stake is the ability to attend a particular university".

And even if you aren't going to go with the highest levels used in criminal prosecutions (beyond reasonable doubt), that doesn't justify using the lowest possible standards (i.e. a 51% chance that he did it), especially when you combine that with systemic biases that make it virtually impossible to mount any sort of defense (no lawyer allowed, not being allowed discovery of the evidence against you, not being allowed to cross examine witnesses, etc). At the very least, the standard of proof should be "clear and convincing evidence", and the accused should have a reasonable chance to defend himself against the charges.

Sexual assault is a horrible thing. I've had friends who were assaulted, and I have been helping a friend work through the trauma of her own recent rape. Those who actually commit sexual assault of any kind deserve the harshest of penalties. However, it is also important to remember that not everyone who is accused of a crime is actually a criminal, and it is critical to our society that we protect the rights of the accused.

To use one high profile example, consider the Duke rape case in 2006. One of the accused had hard evidence (an ATM receipt and accompanying security camera footage, taxi records, etc) showing that he wasn't even there when the alleged attack occurred, and yet he was still threatened with expulsion. It took such an egregious abuse of power on the part of the DA to get the case thrown out. It's unreasonable to assume that the Duke case is the only case of false accusations out there.

 

First, I completely agree with you that school policies need to address a lot more in their sexual assault policies than simply adopt a "yes mean yes" standard. There have to be clear rules about investigation of claims, due process standards when a claim is found to have merit and sanctions if someone is found to have violated the rules (including handing it over to the police in the event of clear-cut criminal activity). And obviously I don't believe a mere accusation should be enough to get someone expelled, but even for state schools there's no reason that due process standards in a non criminal proceeding need to be identical to those of a criminal proceeding. No state constitution requires that, nor does the federal constitution. We have to be careful not to confuse administrative proceedings with criminal prosecution.

As an aside, part of my interest in this is that my son is starting at his new university, and prior to arriving on campus he had to complete two separate online courses. One was on sexual assault/sexual harassment and the other was on alcohol awareness. In addition, his school is launching a new campaign that amounts to "if you see something, say/do something" if you are a third party and you witness someone who may be in danger of being sexually assaulted.

It seems clear that all the federal investigations have made anti sexual assault campaigns on campus analogous to the anti-bullying campaigns at the elementary school level. I'm not saying it's a bad thing, but I'm wary of attempts to codify "the accuser is always right and has no responsibility to keep herself safe from attempts to harm her."

 

Jabba, I think you missed the part of my post where I said:

Regardless of whether it is a criminal proceeding or not, the accused should be allowed some means of defending himself. Today at many schools, if he chooses to hire a lawyer, school policies prohibit him from having the lawyer in the hearing to speak for him. I'm not saying that he should be provided a lawyer free of charge, but he should have the option of having counsel there to help him.

Similarly, in many schools, policies prohibit the accused from being able to cross examine the witnesses (with the justification of not wanting to force the accuser to be traumatized by confronting the accused). Often, the accused isn't even given details of the accusations against him until he is in the hearing.

These are due process protections that are offered by colleges to people accused of academic misconduct (such as plagiarism), but when the accusation is sexual assault, those same protections seem to go out the window.

 

right. I'm saying I mostly agree with you. I know it's unusual. We agree that even in administrative non criminal proceedings, the accused should have some concrete level of due process rights. I do understand the need to avoid traumatizing the accused. I'd agree with you though that a student facing expulsion should be able to hire an attorney and I think at minimum the lawyer should be allowed to depose the accuser in a formal neutral setting and submit a report to the tribunal/investigators that has to be formally read into the record.

 

Stepping back from the affirmative consent policy, campuses know that the prevalence of binge drinking is a huge problem and that on many campuses, fraternities are a big part of the binge drinking problem. Sexual assault claims are the second most prevalent liability claim against fraternities, behind only assault and battery. Everyone knows a big purpose of college frat parties is baiting a trap for naive underclassmen girls - luring them in and plying them with alcohol to facilitate sexual encounters for their members.

I don't see how you can really significantly reduce sexual assaults on campus, if that's the real goal, without reducing the prevalence of binge drinking. And in some cases that would have to mean really cracking down on fraternities, which universities are for obvious reasons often afraid to really do.

Essentially, binge drinking culture already was in my day and increasingly is now a big part of campus life. But it's impossible to create a binge drinking culture that is safe for women. You have to crack down on binge drinking culture.

And what the alcohol-related passage of the CA affirmative consent law does is essentially absolve women of responsibility for the role they play in being part of campus binge drinking culture. Maybe that's a good thing.

 

I don't see how you reduce anything with an affirmative consent law at all given that it's still going to be between two people, drunk or not, relying entirely on he said/she said (or she said/she said or he said/he said) which is a decently large part of the problem today, no?

If someone's going to sexually assault or rape someone else, are we assuming they're not going to lie when asked if they got consent?

 

i don't understand what this means, practically. do they have to ask "do i have your consent to have teh sex with you?" before they start doing it or do they carry around contracts in their pockets or wut

 

I'm saying it's significant that given the text of the statute what the accused says about consent becomes almost meaningless if he was intoxicated.

I've argued this before, but it seems to me that for protection men need to carry a sexual consent affidavit form folded up in their wallet next to the condom. And they should get it signed and preferably notarized before they engage in any sexually activity, also with their spouses.

Universities could hire roving notaries who ride bicycles around campuses, especially frat rows on weekends.

 

I say deal with sexual assault on campus by requiring colleges to forward all claims of sexual assault to the local law enforcement agency.

The last time I checked, sexual assault and rape are crimes - why are we letting anyone other than trained law enforcement handle these cases? If it is a real case of sexual assault, let the criminal justice system handle it, with all of the due process and tools at its disposal. I don't want a rapist merely kicked out of college, I want the SOB in jail. At the same time, I want to make sure that the person punished for sexual assault or rape is guilty beyond a reasonable doubt - not because some twisted form of Star Chamber justice took place.

The cases where people accused of sexual assault have been railroaded with no due process should disturb any fair-minded, rational person. Here's one case from Tulsa University - where he was cleared, but still, some serious damage has been done - despite being cleared, the accused person lost his last football season of eligibility, which has damaged his chances for an NFL career - which can be pretty lucrative.

Where does that person get justice?

 

Yes. Sexual assault and rape are crimes. Everyone agrees that the clear cut cases that can easily be prosecuted should be criminally prosecuted. But, again, there are the 50% of cases that are alcohol-fueled acquaintance assaults among sexually-charged adolescents where no one could be found guilty based on evidentiary standards of criminal law. But that doesn't necessarily mean the accused is innocent. That means that colleges have to find an an acceptable way to hand out some kind of administrative justice. Like you, I fear an overreaction that swings too far in the direction of accusers, and we're going to have to accept a percentage of cases that come out wrong, because no system is perfect. I also think burying these cases and refusing to properly investigate them and encouraging the accuser to take time off from school and essentially lay low for a semester or two is the right answer either.

 

Sex is now a legal contract. Thank you CA dems.

 

Exactly.

Jabba, are you sure that the text you quoted doesn't boil down to demanding that higher education institutions integrate in their sexual assault policies all the terms of the definition of rape under California law? Does California law in general not require affirmative consent?

As for the former GWU president's remarks concerning female alcohol consumption, they're beyond medieval. The issue isn't that would-be victims should be sober enough to defend themselves, it's that would-be rapists shouldn't assault people. Awareness campaigns against sexual harassment and assault and against binge drinking make perfect sense, but only if they target both men and women.

 

If someone wants to accuse someone of sexual assault, then go all the way and inform the cops. If you're going to accuse someone of a crime, then give them the due process. The approach in too many colleges resembles star chamber justice.

 

Chin Tuck, my point is that campus binge drinking is always, every time going to drive sexual assaults, and that women do have a responsibility for thinking about it and for protecting themselves. But also, at the same time, university administrations need to target institutions designed around binge drinking and sex, like fraternity parties, if they really want to significantly reduce the incidence of sexual assaults.

JediSmuggler, it's important to acknowledge the difference between "you don't have a case" and "you weren't raped." I agree with you, maybe someone who believes they were raped should go to the police first. But if the police/prosecutors can't help that person, then maybe it makes sense to go to the university administration.

 

The reason that colleges do not report to local law enforcement is because of everything else in life: money

The Clery Act provides impetus for on-campus police forces to "handle" requests -- the school is required to report on offenses including liquor-based law violations which is why this is unlikely to happen. Reporting increased numbers will lower a) enrollment and b) money (in the form of potentially paid fines and lowered financial aid for students).

 

Part of the problem that the police face in investigating sexual assaults is that often there is limited clarity provided by the physical evidence (if any).

For example, in my friend's case that happened last month, there is unfortunately little that the police can do. She really waited too long to report the assault (it happened July 11/12, but she didn't report it until sometime in August), and so there was limited physical evidence. He claimed that it was consensual, and so it basically reduced down to he said/she said. Because of that, the police decided to close the case and no charges are forthcoming. It's unfortunate (and it's leaving her a big mess to clean up, made harder by her refusal to see a therapist for help), but that's the price of requiring probable cause and the presumption of innocence. Even though it makes it harder to bring my friend's attacker to justice, I still think it is important to preserve those basic rights.

Often, in the "alcohol-fueled acquaintance assaults" you mention, both participants are drunk, not just the accuser. This usually results in poor judgement on both sides. In some cases, you could easily claim that both individuals assaulted the other, because neither one could legally consent. And yet, you never see the woman accused of assault. It's always the man.

Just because the accused is not necessarily innocent doesn't mean that he should be treated as a criminal. There's a reason that our court systems don't judge people to be innocent, but rather use the term "not guilty". It simply means that guilt was not proven to the applicable standard. Sometimes (as in my friend's case), the evidence doesn't support prosecuting someone, and all you can do is hope that more evidence can come along later. That isn't a justification to run roughshod over their rights in the process.

 

I guess the difference between our opinions is that I feel because universities that feed and house students and own all sorts of real estate where sexual encounters occur, they have some responsibility to create a safe environment, so that they have a duty to investigate cases of sexual assault even in instances where criminal prosecution may not be possible. Maybe the kind of administrative solution to the problem is expulsion, in which case the accused deserves some stipulated, regulated level of due process rights, but not the same level of due process necessarily that would be used in a criminal proceeding. I also agree that if no criminal prosecution is happening, the ability to permanently stigmatize the individual beyond just kicking them off campus, should be limited.

 

That is part of it.

But the other part has to be that personal responsibility has been taken out of the equation as well.

 

I understand what you say, but I disagree on two points:

1. Binge drinking doesn't drive sexual assault. What drives sexual assault is a sense of entitlement, of domination and of power, mostly (albeit not exclusively) among men.

2. We all agree that women should protect themselves but we're not talking about walking naked in the streets of Mogadishu at 3am here. We're talking about going to a party in the context of an educational institution, and such institutions are by definition intended to be safe spaces. Making people aware of how to stay safe is only a tiny part of making a space safe in general.

Just to avoid misunderstandings, the "beyond medieval" comment was intended for the GWU president, not you. It's one thing to express this idea in a casual chat on the internet and another one entirely to make such an official statement in your capacity as the highest authority of a university.

 

The problem with that is that expulsion is far more than just "kicking them off campus". It creates a huge stigma around it as well, and can make it extremely difficult and expensive for someone to continue their education elsewhere. It can also cause significant problems for people that can linger for decades.

Anyone expelled from a university who applies to another institution will be asked to explain their expulsion, and why would any other school looking to "create a safe environment" willingly accept someone who was expelled from another school to "create a safe environment" there? Wouldn't that make the school face potential liability if that person attacked someone else? Why would a school accept that risk?

 

I really disagree on point one. Both adolescent men and women are sexually charged, albeit perhaps to different degrees. Binge drinking is a culturally accepted practice among youth for facilitating sex. Binge drinking badly impairs decision making. At least half of sexual assaults are alcohol-fueled, and my guess would be that on college campuses among acquaintances that number is a lot higher. I don't know how you ascribe any kind of conscious motive of domination and power to people who are drug-impaired. Not that I believe alcohol is an exculpatory factor for anything. But I do believe that actual prevention of sexual assaults needs to be a bit more directed at the practical weaknesses and flaws in youth culture that make sexual assaults more prevalent. And if you can prevent sexual assaults by educating men and women how to avoid dangerous situations and by incentivizing them to be responsible for doing that, then you should direct your policies that way too.