Friday, August 29, 2014

California college men need to understand the new "affirmative consent" law -- and to use it when they are victims of sexual assault

The "affirmative consent" bill

The California legislature has passed SB-967 Student safety: sexual assault, the infamous "affirmative consent" bill. Now California has a criminal statute that regulates sexual assault in society at large and it will soon have one that regulates sexual assault on college campuses. When Gov. Brown signs it, it will be the first statute ever enacted to define "consent" for college students. "The bill defines consent to sex as the presence of a 'yes' rather than the absence of a 'no,' a cultural shift that victim’s groups have long advocated." See here. The law will codify the use of the low “preponderance of the evidence” standard (50.01% likelihood) in campus sexual assault cases and mandate “affirmative consent” at every step of a sexual encounter.

There are a host of problems with the new law. The co-author of the bill in the Assembly, Assemblywoman Bonnie Lowenthal, D-Long Beach, was asked how an innocent person is supposed to prove consent: “Your guess is as good as mine," she said. Will it be implemented along the lines of Antioch College's infamously absurd sexual assault policy, so nutty that it was mocked in a Saturday Night Live skit? For those who don't remember Antioch's policy: "The persons(s) who initiate[d] the sexual activity [was] responsible for asking for consent." And: "Each new level of sexual activity requires consent." The Antioch policy was rightly skewered for the part about "each new level of sexual activity requir[ing] consent." Is it a stretch to think that young men who got consent for intercourse at the outset will be expelled for not asking whether it's okay to continue if it has gone on for "too long"?

California college men take heed: it is the responsibility of both parties to insure consent

But the other part of the Antioch policy quoted above -- it was the responsibility of the "initiator" to insure consent -- was also very problematic. Determining who is the "initiator" is often no easy task in the horny, murky world of college sex, but in a culture where males are assumed to be the initiators of sexual activity and females are assumed to be reticent about engaging in sex, it is not difficult to imagine which party usually will be singled out as the "initiator." Putting the onus on the "initiator" alone to insure that consent exists for the entire endeavor was code for "policing male behavior."

When the new California bill was first introduced last February, it contained a similar, onerous requirement:
An affirmative consent standard in the determination of whether consent was given by a complainant. . . . . It is the responsibility of the person who wants to engage in the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity.
But when the bill got to the state Assembly, it was changed, and the bill that just passed and that is heading to the governor for signature makes clear that the responsibility for insuring the other party consents is on both participants:
An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. . . . . It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.
The language in the California bill is critically important because sex policing on campus is premised on the antiquated belief that sex is something men do and that women have done to them. Duke University Dean of Students Sue Wasiolek recently was asked what would happen if two students got drunk to the point of incapacity, and then had sex. "Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex," said Wasiolek. This sort of attitude can be deadly, especially in a culture where college administrators think it is perfectly fair to ask whether young men should be expelled on the basis of nothing more than an accusation.

On the basis of the revised language in the California bill, if a couple is in the throes of passion, and if the male fails to inquire if it's okay to proceed, he is no more responsible for sexual assault than the female if she fails to inquire. Any application of the new law that puts the onus solely on the male to insure that ongoing consent is present would be grounds for legal challenge -- and for the male to legitimately claim he, too, was the victim of a rape.

Even more important, if a male student, drunk or not, is not the one who escalates the activity to the next level without bothering to make sure if this is okay, he's the victim and she's a rapist. California men need to know that the burden is on the woman to insure he consents in that scenario, and we need to break down the cultural taboos for men to report their victimization. The reason we don't have a lot more men reporting they've been raped by women is because the very notion doesn't fit society's assumptions about men, women, and sex.

A few months ago, Wall Street Journal writer James Taranto wrote about sex partners who engage in mutually reckless drunken sex where both parties are intoxicated and mutually decide, in their drunken states, to have sex. Both of them engage in precisely the same conduct; the only difference is that one has a penis and one has a vagina. Mr. Taranto said it is unjust to hold only the man responsible when two drunks mutually decide to have sex. The male is every bit as much a "victim" as the female, and the female is every bit as much a "rapist" as the male. In Mr. Taranto's scenario, the parties' genders, not their conduct, is the only thing that differentiates them.

That didn't stop the usual suspects from having a conniption over Mr. Taranto's article. Tara Culp-Ressler wrote: ". . . conservative commentator James Taranto argued that a 'balanced' approach to the college sexual assault crisis involves placing equal blame on rapists and their victims, if both of them were drinking alcohol." Even though that's not what James Taranto argued. David Futrelle attacked the premise of Tatanto's scenario: "Huh," clucked Futrelle. "I'm pretty sure we determine the victim of a rape not on demographics but based on WHICH PERSON RAPED THE OTHER PERSON."

In contrast, Brett Sokolow of NCHERM thinks that in too many cases, colleges do determine the victim of a rape on the basis of demographics and not on which person raped the other. Mr. Sokolow, who has done more to advance the rights of rape survivors on campus than anyone we are aware of, cautioned colleges that when a man and a woman engage in mutually tipsy sex, the school shouldn't single out the guy for discipline, but they do. Shortly after that, Mr. Sokolow elaborated in an open-letter that raised very serious concerns about the hostility on American college campuses to the rights of men accused of sexual violence. Sokolow said that in the drunken "hook up" culture, the evidence is often too murky to warrant charging and punishing the male accused of sexual misconduct, but that's exactly what too many schools are doing. He said that "in a lot of these cases, the campus is holding the male accountable in spite of the evidence – or the lack thereof – because they think they are supposed to, and that doing so is what OCR wants." And in "case-after-case . . . sincere victims believe something has happened to them that evidence shows absolutely did not . . .." And: "We see complainants who genuinely believe they have been assaulted, despite overwhelming proof that it did not happen."

College men need to know that they are being unfairly singled out for sexual assault chages (don't rely on me -- that's what Brett Sokolow said), and California college men need to know they will soon have a law that says women have a responsibility to get the guys' consent, too. And they need to use that law when they have been victimized.