In a recent unanimously voted bill, a State senate has decided that, when it comes to sex on campus, “yes means yes.”
If you’ve followed coverage of the story, you probably imagine that that means they’ve taken yet another great stride forward toward equality in the notoriously backward and socially conservative wasteland of…
Apparently, the well-funded legal system in that state was not sufficient to prosecute rape (which is illegal under the state’s law and has been forever), so colleges now need to step in to do their part with a little extrajudicial enforcement. Great.
Seeing as how this bill was signed into law unanimously by the senate, there can be little doubt that it will be signed by gov. brown and become law. What’s done is done. In the meantime, it’s worth looking into some specific clauses in the bill and what they mean for students at California colleges.
In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking… The policy shall include all of the following:
(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity.
So far so good. At this point it would be hard to really take issue with this law. Affirmative consent could mean as much as signing a written consent form or as little as nodding your head. Anybody complaining about the bill at this point would have a hard time making the case that this is unreasonable. But, let’s continue.
Affirmative consent must be ongoing throughout a sexual activity…
Define “ongoing.” Does this mean that both parties need to keep repeatedly saying “yes” at intervals? If so, at which intervals? Once a minute? Once every half hour? It’s clear that merely NOT telling the partner to stop, does not constitute a continued consent. So what’s the standard?
This specific clause was so badly written it’s almost beyond comprehension. What moron actually WROTE that shit? If you take it to its logical conclusion, it’s basically saying that sex is always illegal unless both partners and continuously saying “yes” from beginning to end. “Yes! Yes! Yes! Yes!’ For those of us who aren’t lucky enough to get multiple entire-sex-session lasting orgasms, picking a school that’s not in California may be wise decision.
Next, we get into the “what doesn’t count as consent” part of the bill. And here’s where things really get fun.
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
This clause could make sense in theory, but in practice, it’s almost impossible to prove that someone’s “belief in consent” arose from them being intoxicated or reckless. A lot of jurisdictions define “intoxication” as just 2 or 3 drinks. That’s not enough to hear “yes” when your partner actually said “dress.” And recklessness? What does that even mean? “Your honor, my boyfriend was being RECKLESS when I handed him the signed sex consent form, my written permission didn’t count!” So yeah… big time fail.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
“Affirmative consent” is pretty unambiguous. If someone said “yes,” that’s affirmative (in the positive, indicating agreement) consent (granting permission). Are the California lawmakers saying you need to ask… TWICE??
The standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
In other words, the standard is NOT “guilt beyond a reasonable doubt.” If the majority of evidence seems to indicate that the accused raped the defendant, then the tribunal should side with the defendant and expel the accused.
But… Wait a second. We’re not even talking about actual courts here. We’re talking about tribunals set up by colleges. These types of organizations, last I checked, don’t have the capacity for DNA testing or virtually any other technique used to glean evidence in the somewhat murky area of rape. So where is the preponderance of evidence going to come from? Is simply being an attractive chick evidence?
In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt detailed and victim-centered policies and protocols regarding sexual assault
“Victim centered.” How do you actually do this? Like actively encourage women to accuse their partners of sexual assault? I don’t get it.
(e) Outreach programming shall be included as part of new student orientation. every incoming student’s orientation.
This is probably the one part of the bill I can actually get behind. If you’re going to institute a campus-wide policy against sexual assault that requires “repeated and ongoing consent” based on the evidentiary standard of “preponderance of evidence,” where intoxicated consent doesn’t count as consent and “recklessness” nullifies consent, then yes! Damn straight! Everybody SHOULD be educated on this policy and educated on it as soon as possible, because frankly any sexually active male’s future is being placed at the whim of the girls he’s involved with.
But my approval of even this clause only goes so far. I think it’s inefficient, in the sense that, if schools are now required to implement policies that ban sex (in practice), they might as well just cut straight to what their real intention is and put up posters aimed at every man in the school telling them:
“Listen fellas, this whole college thing? Not what they said it was. This is actually a monestary in the religion of Political Correctness, and from now on we’re expecting you to act like a monk. No women, no alcohol, no drugs, and definitely no fun. Oh yeah, and please be prompt with paying that $20,000 tuitition fee, the rape crisis centre needs a new therapist’s couch.”