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California

Ben Boychuk
The “Affirmative Consent” Trap
California lawmakers take on “rape culture” at the expense of rights
18 July 2014

An epidemic of sexual assault is supposedly raging on college campuses. Surveys and studies repeat the same frightening statistics: either one-in-four or one-in-five college women have been the victims of a sexual assault. Yet at a June hearing of the California State Assembly Higher Education and Joint Legislative Audit committees, chairman Das Williams couldn’t understand why the number of students disciplined for sexual misconduct was so low. A University of California at Berkeley administrator, for example, reported just 10 suspensions or expulsions out of 43 cases involving non-consensual sex over the last six years. How could that possibly be?

Williams, a Santa Barbara Democrat, concluded that the number of suspensions and expulsions of these alleged perpetrators of sexual violence had to increase. The consequences for student assailants are “not significant enough to act as a deterrent,” he warned—failing to consider that perhaps the problem of campus sexual violence isn’t as widespread as he’d been led to believe. In any event, Williams’s point was unmistakable: California’s universities had better start punishing more alleged offenders, or there will be consequences for the universities. And if administrators need a lower standard of proof to boost punishments, he and his colleagues would be more than happy to give it to them.

Williams is promising a slate of bills early next year that would mandate training for all university employees to respond to, and intervene to prevent, sexual assault, and, more significantly, to beef up punishments for alleged assailants. “Rape is a very difficult thing to prosecute,” he told the Sacramento Bee. Because most college disciplinary boards already use the lower “preponderance of evidence” standard—as opposed to the more rigorous “reasonable doubt” standard that criminal courts apply—“there is a real role that schools can play that law enforcement can’t.”

The reigning assumption in Sacramento—and Washington, D.C., for that matter—is that universities aren’t taking the problem of campus sexual assault seriously enough. A state audit released in June drew precisely that conclusion, and recommended that California’s state universities “do more to appropriately educate students on sexual harassment and sexual violence.” Every campus has a rape crisis center of some kind, with counselors on call 24 hours a day, seven days a week. Every campus police department offers rape defense programs. “Take Back the Night” programs are ubiquitous. Is more training and “education”—meaning more bureaucracy—really the answer?

Neither the legislature nor the state auditor seems to challenge the claim, unchanged and virtually unquestioned for nearly 30 years, that either one-in-four or one-in-five college students is a victim of sexual assault. As Heather Mac Donald has pointed out, if that figure is correct, “campus rape represents a crime wave of unprecedented proportions.” But it’s almost certainly not accurate. “No crime, much less one as serious as rape, has a victimization rate remotely approaching 20 or 25 percent, even over many years,” Mac Donald observes. Consider the one-in-four or one-in-five figure in light of the number of sexual assaults reported in the nation’s most crime-ridden cities. Mac Donald notes, for example, that the rape rate in New Orleans was .0234 percent in 2012.

The legislature wouldn’t be so keen to do something—anything—about the so-called campus “rape culture” if the federal government wasn’t demanding action and threatening to withhold precious education funding if states don’t show results. At the June hearing, Williams cited the Clery Act, which requires any college or university that participates in federal student financial aid programs to disclose crimes on and around campus, and makes specific provisions for victims of sexual assault. More worrisome, however, are the threats from the U.S. Department of Education to crack down on campus sexual assaults using Title IX of the 1964 Civil Rights Act.

At a conference on campus sexual assault at Dartmouth College earlier this week, Assistant Secretary of Education for Civil Rights Catharine Lhamon said she wouldn’t hesitate to deny a school’s federal funding if administrators didn’t toe the line. “Do not think it’s an empty threat,” Lhamon said Monday. “It’s one I’ve made four times in the 10 months I’ve been in office. So it’s one that’s very much in use.” Two weeks ago, the department’s Office of Civil Rights announced it was adding a dozen schools to the list of 55 colleges and universities already under investigation for violating Title IX. A handful of California campuses, including UC Berkeley, are now under federal scrutiny. Thirty-one Berkeley students filed two federal complaints against the university in February. They claim university officials violated federal law by failing to protect them against sexual assault.

And Congress appears prepared to go even further. Last week, Senator Claire McCaskill, D-Missouri, released a study alleging widespread failure among U.S. colleges and universities to arrest this widely reported epidemic of sexual assaults. Among her report’s harrowing details: More than 40 percent of 300 schools surveyed had not investigated a sexual violence claim on campus in the past five years. “Which means,” the senator said, “they’re saying that there have been zero incidents of sexual assault on their campuses in the last five years. That is hard to believe.”

Legislation is almost always a blunt instrument. State Senator Kevin de Leon’s SB 967 seems blunter than most. If passed, the Los Angeles Democrat’s law would require state college and university students to obtain “ongoing” “affirmative consent” throughout “a sexual activity.” Just imagine the complications. De Leon’s bill says: “Lack of protest or resistance does not mean consent, nor does silence mean consent.” Fine, but it’s hard to see how such a law could possibly work. As written, SB 967 offers an unsettlingly vague definition of “affirmative consent.” Such consent, the bill’s language states, “means affirmative, conscious, and voluntary agreement to engage in sexual activity.” De Leon insisted when he introduced the bill in February, “there’s nothing that’s vague, there’s nothing that’s ambiguous to this equation right here.” But cut to its essentials, his bill relies on a tautology: “Affirmative consent means . . . affirmative . . . agreement.”

Even feminist supporters of affirmative consent laws perceive the trouble. “On a societal level, we have a lot of work to do on how we view sexuality and gender before we make a dent in our rape problem,” wrote Martha Kempner, a consultant and “sexual health expert” who blogs at RH (Reproductive Health) Reality Check. “I also recognize that these laws may be impossible to enforce and may not, in the end, make it any easier to punish rapists; there will no doubt still be he said-she said battles over who said ‘yes’ and when.” Still, despite these misgivings, Kempner finds herself “hopeful at the thought of this law passing in California.” At Slate, meanwhile, Amanda Hess waxes enthusiastic about de Leon’s legislation, as long as the bill is “broad enough to include nonverbal cues.” It isn’t.

In our postmodern age, sexual assault has come to mean practically any unwanted, unexpected, or regretted sexual encounter—to the point that the term encompasses everything and nothing. But faced with the possibility of federal lawsuits or worse, it’s no surprise that nervous lawmakers respond with a bill like SB 967, which would employ vague terminology to empower university administrators to indict, prosecute, and convict students for what are by definition criminal offenses. If a student has committed rape, it should be a law enforcement matter first, and disciplinary issue second. Instead, the legislature would risk further running roughshod over due process and dismantling the constitutional right of the accused to confront his accusers. Victims of sexual assault, Williams said at the June hearing, “don’t just want support, they want justice.” But legislators and bureaucrats don’t want justice—they want punishment. And they’ll mete it out anyway they can.

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