Tuesday, February 23, 2016

'Yes Means Yes' Bill Would Eliminate Due Process on Campuses

Original source here.
Rape is a very serious crime. It is a violation of another individual’s body and mind in a way that is far worse than almost every other crime. Society must reject rape and find ways to foster a culture that does not promote rape or make it acceptable. To that end, we must reverse the presumption of innocence in cases involving sexual assault and make the accused prove that he did not, in fact, rape the victim.

At this point, you’ve realized that this is impossible to do and not I’m seriously suggesting it. So why then are our legislators proposing a similar idea, except limiting it to rape on campuses? Couched as the “affirmative consent” or “yes means yes” law, it is essentially a reversal of the presumption of innocence and an elimination of due process on college campuses.

What the bill before the General Assembly fails to recognize is affirmative consent standards on campuses won’t eliminate campus rape. A rapist doesn’t refrain from raping because it is illegal to rape. Why would that be any different on a college campus? What this bill does is take regular, consensual activity between adults on a college campus and shrouds it with a veil of impropriety.

This bill, which was first proposed last year, seeks to emulate California’s first-in-the-nation “yes means yes” law. Since this year’s bill hasn’t been made public, I rely on last year’s version. It defined affirmative consent as “an active, informed, unambiguous and voluntary agreement by a person to engage in sexual activity with another person that is sustained throughout the sexual activity and may be revoked at any time by any person.”

What is an active agreement? What is an unambiguous agreement? What is an informed agreement? It has to be “sustained throughout the sexual activity”? What does that mean? Does that mean that you have to repeatedly secure the consent of your partner in the throes of sexual passion? Have any of the people proposing this bill ever been to college? Have they ever had sex?

As some critics pointed out last year, the bill doesn’t even define sexual activity. So does it include kissing? Oral sex? Fondling?

The bill states that it is the responsibility of each person to ensure that he or she has the affirmative consent of all persons to engage in the sexual activity. This means that both parties must declare, in words, beforehand that they wish to unequivocally engage in the specific sexual activity that they are about to embark on. Further, if they wish to expand the scope of such sexual activity, they must first pause and then clarify with each other, again in some recorded form, that they both agree on the expansion. And so on. What mechanism exists not only to secure the affirmative consent, but then to prove that you had secured it, short of videotaping each instance of permission seeking or obtaining repeated signatures on a waiver form?

Anyone else feel like they just took a cold shower?

Here’s how people generally hook up: they get drunk, they see someone they like, they flirt a bit, they start kissing, if you’re in college, probably at a party or something. The leaning in for a kiss is a very special moment the first time; there’s excitement, there’s passion, there’s electricity, maybe the moment is right, maybe there’s a cool breeze. There certainly is no, “Excuse me, sir, but is it OK if I kiss you?”

Even if someone is polite enough to ask permission to kiss, must the person, pursuant to this bill, stop and ask permission before a second kiss? What if his hand strays to the opposing person’s shoulder? Do we need permission for that? What if his hand then goes to the to-be-lover’s genital area, while still clothed? Must he announce at every step? “I’m now placing my hand on your breast. Is this OK? Please answer out loud into this microphone.”

During sexual encounters consent is routinely implied. When switching from the missionary position to something else, no normal person interrupts to go through a list of positions and have a committee meeting to decide which one to try next and take a vote on it, and to record that vote in some fashion. If that were the case, one or both participants would have suddenly developed a headache.

Which brings us to the other huge problem with this proposal: “(D) it shall not be a valid excuse to an alleged lack of affirmative consent that the accused believed that the victim consented to the sexual activity (i) because the accused was intoxicated or reckless or failed to take reasonable steps to ascertain whether the victim affirmatively consented.”

What are “reasonable steps”? Asking a question? Interpreting a visual cue as consent?

The problem with this bill is that to put the onus on the accused is to make indefensible an accusation. The only surefire way to defeat a false sexual assault accusation is to record every instance of consent on a video camera, or have witnesses present. Perhaps all students ought to print out and carry waivers that their paramours must sign at frequent intervals in the lovemaking process to ensure that a regretted encounter does not turn into cause for expulsion.

As of early January, there were about 50 lawsuits pending against colleges nationwide accusing them of depriving students of due process by putting the onus on them to prove consent and unfairly expelling them. These are students whose lives have been upended because the colleges assumed that they were rapists and asked them to prove otherwise.

The intention of Connecticut’s bill is noble. There can be no doubting that we must make our young adults more aware of the rights of others to refuse their advances and the absolute necessity of engaging in sexual activity only with the informed consent of the other party. If that’s all this bill did, then I would have no problem with it. But this bill seeks to create a parallel justice system, with punishments, without any attendant protections. We should not be so quick to strip the rights and entitlements of those who have been accused of wrongdoing.