California lawmakers are poised to enact a regulation requiring every college and university that receives public funding to define consensual sex in a way that attempts to micro-manage everyone’s sexual affairs.
The first-in-the-nation legislation already passed California’s state Senate by a vote of 27-4 in May, The Associated Press reports. If the bill passes the assembly this month, it will then go to the desk of Gov. Jerry Brown.
The bill, which is based on guidance from the Obama administration, requires an “affirmative consent standard” that school administrators would use to determine whether a sexual assault has occurred. The standard would define every sexual encounter as an “an affirmative, unambiguous and conscious decision” by everyone involved.
Under the law, a person who communicates nothing would not consent to sex. A person who is asleep or drugged cannot consent, but such people already can’t consent under current law.
At the same time, communication of consent can be vague and muddled — a nod of the head, say, or perhaps some kind of lean-in movement.
The bill says consensual make-out sessions leading to sex must be “ongoing” and “can be revoked at any time.”
“[I]f there is confusion as to whether a person has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion can be clearly resolved,” the legislation declares.
It’s not clear what standard of evidence school administrators would use to determine who is telling the truth in a he-said-she-said (or he-said-he-said, or she-said-she-said, or he-said-they-said) situation.
It’s also not clear why California’s state politicians believe that college bureaucrats instead of police investigators, district attorneys, judges and juries should determine when the brutal and very serious felony that is rape has occurred.
Whatever the case, critics of the bill say it’s a recipe for disaster.
The editors of the Los Angeles Times condemned the proposed new law as unreasonable and likely unenforceable, the AP notes.
“It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms,” the Times editors opined.
Another critic, Ada Meloy, general counsel of the American Council on Education, observed that many of the cases likely to arise under the new regulation will be highly ambiguous.
“Frequently these cases involve two individuals, both of whom maybe were under the influence of alcohol or drugs, and it can be very tricky to ascertain whether consent was obtained,” Meloy told The Associated Press.
John Banzhaf, a public interest law professor at George Washington University who defended three Duke lacrosse players charge with rape, has suggested that college students facing rape accusations already have fewer rights than immigrants who illegally cross the border into the United States.
In an interview with Campus Reform, Banzhaf said that American colleges and universities have discarded the “very high standard of proof” — “beyond a reasonable doubt” — which government attorneys must meet to convict accused rapists. He noted that this trend is particularly apparent “in cases of date rape.”
In the place of the “beyond a reasonable doubt” standard, many colleges have instituted a “preponderance of evidence” standard, which basically means just a 50.01 percent certainty.
“Rape is a crime and colleges shouldn’t be involved at all,” Banzhaf told Campus Reform.