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.
Banzhaf added that the colleges already risk costly lawsuits with their quasi-judicial codes.
“There are more and more individual cases where students are found guilty and suffered consequences are winning these cases,” the professor claimed.
Banzhaf has proposed that colleges retain the services of retired lawyers or police officers who “do nothing but investigate and if necessary adjudicate” rape claims if they insist on taking on roles traditionally handled by America’s criminal justice system.
“I’ll be damned if a junior assistant dean for libraries” should decide the fates of students charged with sexual assault, he told Campus Reform.
In a strange and interesting twist, Banzhaf also added that “students are videotaping their sexual encounters” with more frequency — a trend with has to please America’s lucrative porn industry but can’t possibly be a sign of a healthy situation.
Meanwhile, supporters of the California bill insist that it will protect potential sexual assault victims — particularly women.
Sen. Kevin de Leon, a Democrat from Los Angeles, has endorsed the bill by declaring that the current system is “stacked against survivors.”
Other advocates of the bill agree.
“Most students don’t know what consent is,” University of California at Berkeley student Meghan Warner confidently told The Associated Press. “I’ve asked at the workshops how many people think if a girl is blacked out drunk that it’s okay to have sex with her. The amount of people who raised their hands was just startling.”
Warner, 20, claims that she was sexually assaulted as a freshman by two males at a fraternity house. She told the AP that she didn’t report the crime because she was under the impression that “that unless it was a stranger at night with a weapon who attacked you when you were walking home, that it wasn’t rape. It’s just a crappy thing that happened.”
A number of civil lawsuits are winding their way through courts around the country which have been filed by students who say they have been railroaded after someone wrongly filed a sexual assault claim with college administrators.
Last week, for example, a now-expelled student at the University of Massachusetts Amherst filed a federal suit because, he says, administrators ruled that a consensual tryst in which he was involved violated the taxpayer-funded school’s code of student conduct.
It’s the second lawsuit filed by a New England area student suffering such a fate, the Daily Hampshire Gazette reports.
The two students involved in the UMass situation that gave rise to the lawsuit are identified as John Doe and Jane Doe. The two Does met a party on Sept. 13, 2013. They flirted. Alcohol flowed. The female student convinced her roommate to leave, according to the suit. Sex happened. The male student says that he repeatedly asked for and received verbal consent.
The next day, the male student sent a text to the female student. He was sad to learn that she viewed the event as just a one-night stand.
Things quickly got worse for him, though, after the woman told her friends that she didn’t remember much about the evening and her friends convinced her to file a sexual assault claim — not with the cops, of course, but with campus bureaucrats.
The male student was not allowed to have a legal adviser and he was expelled, even though no one ever accused him of “harassment,” or “assault” or “rape,” notes the Gazette.
Despite the complete lack of due process, a university spokesman assured the local newspaper that “due process for all parties involved is a central aspect of” the school’s code of conduct.
Another example of a lawsuit currently underway involves events that occurred in the wee hours of Sept. 8, 2013 on the campus of Occidental College in Southern California.
Under pressure from the federal Department of Education’s Office for Civil Rights to respond to allegations of campus sexual assault (and a lawsuit filed by Gloria Allred), Occidental officials kicked a male student out of school after finding him “responsible” for raping a female student, despite a series of text messages that blatantly indicate her sexual enthusiasm.
According to evidence gathered by Occidental’s private investigators, the female student, asked the male student via text “do you have a condom” and sent an eager text to friend reading “I’mgoingtohave sex now” [sic]. This second text ended with a smiley-face symbol.
Among many other fascinating aspects of the case, court documents show that a sociology professor at the private liberal arts school said she knows exactly how to spot a rapist.
The professor, Danielle Dirks, indicated that he “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was ‘from a good family.'” (RELATED: Lawsuit: Professor Brands College Student Rapist Because He Got Good Grades, Played Sports And Was ‘From A Good Family’)
In addition to California, state legislatures in several other states including Texas, Connecticut and Maryland have introduced sweeping bills to make it easier for school administrators to punish students accused of sex crimes and further deprive student defendants of due process rights.