Bill pushes into college sex lives to help rape victims

[Gormy Cuss]

Last edited Sat Jun 7, 2014, 10:29 AM - Edit history (1)

Affirmative consent is controversial?

Sacramento --

California lawmakers want to take the burden of preventing rape off victims by requiring that college students looking to hook up prove they had agreed to have sex.

The "affirmed consent" standard - already in place at many universities - could be required at all publicly funded California colleges and universities under a proposed state law being considered by the Legislature.

This guy apparently wasn't thinking about the implications of this statement:

"The only thing this does is decrease the number of men on campus," said Professor Gordon Finley of Florida International University, a critic of affirmative consent policies.

http://www.sfgate.com/news/article/Bill-pushes-into-college-sex-lives-to-help-rape-5535057.php

[rrneck]

1. "prove they had agreed to have sex"

How would that work? Would it involve documentation?

[Gormy Cuss]

2. It involves using words.

Asking for consent rather than assuming it. More to the point, it involves changing the standard of how complaints of sexual assaults are handled within the colleges to one where the responsibility for maintaining consensual sex is on the initiator.

[rrneck]

6. Yes, that's certainly appropriate.

But if you want to apply this standard in any meaningful way I would think some sort of documentation would be required. If you want to prosecute someone for rape, you have to prove that consent was not given. When two people agree to a legally binding shared activity they agree to a contractual obligation that is enforceable by law. A contract is proof of that agreement and assumes paperwork with negotiations and signatures and wotnot.

Unless I'm missing something anything less would leave us right back at "he said she said".

[Gormy Cuss]

7. Simply having such a policy will change the dynamic in a meaningful way

because all parties understand that this is the expectation. Unlike the prof who thinks men will shy away from colleges with this policy (because apparently he thinks only men are initiators) I think that affirmed consent encourages both men and women to take more responsibility for keeping sex consensual.

I don't for one minute think that this will end the "he said, she said."

[rrneck]

9. In the late eighties

such a policy was enacted at a college. The man was expected to ask permission at every juncture of the sexual encounter. The name of the school will come back to me around midnight tonight. It became just another hook up line as in "wanna enact the policy?"

[Gormy Cuss]

10. This would be backed by law

and unlike in the 1980s, it's not a novel concept now.

[rrneck]

11. Great. If it's backed by law then the rules of evidence will apply.

You can't prosecute somebody without evidence. What do you suggest as evidence for non consent that would prove guilt beyond a reasonable doubt?

[Gormy Cuss]

13. I'm not a lawyer, so I'm not qualified to answer that evidence question.

However, simply having a law in place tends to make people take notice. Civil rights legislation didn't cure racism, but it has over time weakened it considerably. In a simpler context, traffic laws also are effective mostly because most people want to obey the law.

[rrneck]

14. As I recall

civil rights legislation was backed by the national guard. Mandaterd busing actually moved people from one place to another. Equal rights resulted in people actually working at certain occupations, attending certain schools and patronizing certain establishments. That happened because people violating the law could be prosecuted for doing so. It represented a sea change in our nation's culture. Rape has been a serious crime for a long time. There has never been any doubt about the abhorrent nature of the act.

In the end, if a woman says, "he raped me", even if he did, nobody will be able to do anything without evidence. You can't lock people up without proof. A law mandating certain negotiations without any way to prove that those negotiations actually took place will be a toothless exercise in futility. And the politicians who put it in place will lose credibility and possibility elections because of it.

[Gormy Cuss]

15. Keep in mind that SB967 is a bill directed at the institutions and their responsibilities

and the penalty for not complying is loss of state funding.

The details of rape charges will still be handled by the courts. However what changes is that the colleges have a compelling reason to set the tone, educate students and staff, and to implement protocols that don't allow them to favor the accused over the accuser.

[rrneck]

18. Well, lets have a look at the law in question

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967

(1) 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 initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent.

That is certainly the way things ought to be done, but how will the accused prove he complied with such a standard in the real world? What mechanism will shield him from liability? How will the accused prove he has fulfilled his responsibilities? Granted, it's not a criminal charge (yet), but there will nevertheless be consequences otherwise why put the policy in place? Those consequences will be unjustly applied without some mechanism to prove compliance.

Of course, if the accused is charged with rape how long do you think it will take the prosecuter to introduce evidence of disciplinary action by the school? Read a little further in the bill and we find this:

(2) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

(3) A preponderance of the evidence standard in the determination of disciplinary action.

So someone can be charged with rape and be disciplined by the school based on a significantly lower standard than that required by the courts. He can have his reputation savaged and his college and further career destroyed based on the same standard required by a civil claim. And that's before the courts even see the case.

And as we read further, we find this:

(8) Investigating allegations that alcohol or drugs were involved in the incident, and providing amnesty from disciplinary action if the victim violated the school’s policy when the sexual assault occurred.

So not only is the accused saddled with an impossible burden of proof, the accuser is absolved from responsibility for her actions even if they clearly violated school policy. There is nothing about this law that is fair or just.

I can understand the motivation and the need for this effort, but the law as proposed is a travesty. And I think I know why. It's a sort of ideological distortion that happens on both sides of the political aisle.

The concept of personal responsibility has been distorted by conservatives to further the ends of wealthy oligarchs. It has been used to convince people that they don't need single payer health care, decent infrastructure, unions, transparent banking and investment practices, clean affordable energy, and common spaces free from private interest. That distortion does not negate the value of personal responsibility. Each of us is responsible for our actions even if the consequences of those actions result in injustices because of the failures of others. We are all, as free agents and responsible citizens, expected to exercise due diligence.

The concept of support and mutual nurturing gets distorted by liberals as well. As much as I would like to live in a world where a twenty year old woman can get drunk and fall unconcious anywhere in the country in perfect safety I simply don't see how that can happen. The system simply cannot provide that kind of security.

This law requires colleges and universities to reduce the requirement of due diligence on the part of the accuser and increases it on the part of the accused with no mechanism for him to accomplish that objective.

[Gormy Cuss]

20. The law places the burden on institutions to provide the tools to students

and administrators to understand what constitutes affirmative consent.

Section 2 goes on to define now invalid excuses like the accused was drunk, or the accused didn't take reasonable steps to assure consent (I'm guessing things like asking someone "Do you want to screw me now?"
for example rather than assuming that a sleeping or intoxicated person is fair game.)

The indemnity against disciplinary action because the assaulted student was breaking the school's drinking policy is a no-brainer. It takes away one of the coercive means used currently by some administrators to dissuade formal reporting of sexual assault.
It's called blaming the victim or in some circles, personal responsibility.

This proposed law wasn't invented out of whole cloth. It is reactive: there are too many tales of colleges working diligently to under-report sexual assaults and to place an unreasonably high standard of proof on the victim.

You seem more concerned about the chance of false reporting than of the acknowledged large problem of unreported sexual assaults and improperly investigated complaints.

[rrneck]

22. What would those tools be

and how would the accused prove he employed them?

Like I said, I can understand the motivation and the need for this effort. Yes, rape at colleges and universities are a problem. Yes, it happens all too often. But we don't get to use generalized statistics to prosecute individual cases. You don't get to take away people's rights in specific cases because lots of other people are doing bad things. That's why we have courts, the rule of law and the rules of evidence. The alternative is vigilante justice and mob rule.

"The indemnity against disciplinary action because the assaulted student was breaking the school's drinking policy is a no-brainer. It takes away one of the coercive means used currently by some administrators to dissuade formal reporting of sexual assault."

Yes, that's exactly the point. By creating the impossibility of irresponsible behavior by the accuser the weight of disciplinary action will fall all the more easily on the accused who is offered no means to refute the charge. It's a perfect kangaroo court.

If you're concerned with adjusting the behavior of college students pushing everyone around a drunk into a parental role is the wrong way to go about it. Especially when the person who has to shoulder those responsibilities is little more than a child himself.

"You seem more concerned about the chance of false reporting than of the acknowledged large problem of unreported sexual assaults and improperly investigated complaints."

This is an interesting sentence since I took the time to address the issue already. You can allude to ideological heresy all you like, but in the end you have not provided any way for the accused to make an affirmative defense. Nor does the law, and the authors of it should know better. Administrators aren't engaged in some sort of conspiracy to conceal rape statistics out of misogynistic motives, although their motives might be financial. They are on the horns of a dilemma whereby the parents of Mary may sue them for not keeping her safe while at the same time the parents of Johnny may sue them for false accusations and defamation of character. And it's all because there is insufficient evidence either way.

There is nothing wrong with teaching kids right social and moral behavior. Most colleges and universities have courses in ethics, philosophy, sociology, and religious studies. But like I said, partisans on both the left and the right attempt to rebrand basic human ideals for their own ideological ends, and that always ends badly. When the law is designed to defend ideology rather than justice horrible injustices result. This law is a fine example of that.

But maybe I'm wrong. The solution is an affirmative defense for the accused. I have already asked for one but I haven't seen one yet. I realize this is a protected group so I'm not going to crowd you for it any more. Have a nice day.

[Gormy Cuss]

23. Okay, one final time: the law is reactive.

It's intended to correct well known, existing, widespread biases that have been used to stifle sexual assault charges on college campuses.

Again, I'm not a lawyer and can not address how the accused will be protected legally.

As to the motives of administrators for downplaying sexual assault, it's about protecting the public image and thus probably about protecting the institution's financial health.
You wrote:

Administrators aren't engaged in some sort of conspiracy to conceal rape statistics out of misogynistic motives...

I never claimed that and based on the text of the proposed law, neither did its authors.

Are you aware that from the beginning of this conversation you have use only male pronouns to describe the accused while neither the draft of the law nor I have done so? The bill very carefully avoids making a presumption that men are always at a fault and that women are always their victims.

[rrneck]

24. Yes, I am aware of my use of pronouns.

Males are responsible for the vast majority of rapes in this country. We all know what we're talking about here, as do the authors of that law and their constituents.

All laws are reactive. That's how the legislative process works. People see a need for a law and politicians cook one up. That doesn't mean the law will work. And given the information that I have made available, not to mention the rest of that available on the internet, there is no excuse for not considering whether or not the law will actually work in the real world. Understanding the consequences of our legislative actions is just good citizenship.

Look, I'm trying really hard to be nice here, but I have raised issues that you continue to ignore. I'm not an attorney either, but I can spot a raw deal when I see one, and this law is a raw deal. It simply makes no sense to move responsibility for the actions of one party onto the shoulders of another, and then leave the burdened party no recourse when accused.

If you have any interest in justice apart from ideological imperatives you will consider a way for the accused to make an affirmative defense and explain why the accuser is absolved from responsibility for their irresponsible behavior. If you don't want to do that, that's fine. But understand if you stake your claim on an ideological foundation without any relationship to practical application in the real world your position is not significantly different from any religious fundamentalist. Which is, again, your prerogative. But if you do you change the issue from one of public policy to one of faith which offers no solutions for real people and lots of opportunities for your ideological opponents to cry foul, and for good reason. This law is classic culture war pap and if enacted will only give MRA's something to complain about to no benefit other than conservatives and their attendant bloviaters.

[rrneck]

19. Ah, now I remember...

It was Antioch College.

[Gormy Cuss]

21. Ah, not surprising. That is a very progressive school

along with Reed, Hampshire, and others.

[Squinch]

3. I like the idea of there needing to be an explicit

verbal consent to sex for college kids, and I like the mindset this engenders where no one can get off with the excuse, "I thought she wanted it."

But I'm not sure how, in the event of a rape, this prevents the rapist from saying, "But she said yes" when she didn't.

[spooky3]

4. The rapist could say that but I think the point

Of the law is that the burden would be on him/her to prove it, if questioned, rather than the burden on the victim. The prosecutors would still have to prove the case overall, but it appears that this element change means that we don't assume consent, but rather assume nothing.

I'm not a lawyer so this is a layperson's guess.

[alp227]

12. yeah this is a problem,

for prosecutors often rape becomes a he said/she said thing in the lack of explicit evidence. so frustrating for me when people dismiss rape accusations as "lies" and such.

[Squinch]

5. Gormy, could you give a link? This is interesting, but I'm not clear on what the law entails.

[Gormy Cuss]

8. Oops! Thanks for pointing that out.

I need more coffee

The proposed legislation is SB967

[Gormy Cuss]

17. FYI: The current version of SB967

Section 67386 is added to the Education Code, to read:

67386.
(a) 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 campus sexual violence, domestic violence, dating violence, and stalking that includes all of the following:

(1) An affirmative consent standard in the determination of whether consent was given by a complainant. “Affirmative consent”is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. Consent is informed, freely given, and voluntary. It is the responsibility of the person initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Consent must ongoing throughout a sexual encounter and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.


(2) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

(A) The accused’s belief in consent arose from the self-induced intoxication or recklessness of the accused.

(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

(3) A preponderance of the evidence standard in the determination of disciplinary action.

(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

(A) The complainant was asleep or unconscious.

(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual situation.

(C) The complainant was unable to communicate due to a mental or physical condition.

(b) 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 sexual assault policies and protocols that comport with best practices and current professional standards. At a minimum, the policies and protocols shall cover all of the following:

(1) A policy statement on how the institution will protect the confidentiality of individuals involved in the incident.

(2) Initial response by the institution’s personnel to a report of sexual assault, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the
identification and location of witnesses.
(3) Response to stranger and nonstranger sexual assault.

(4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview.

(5) Contacting and interviewing the accused.

(6) Providing written notification to the victim about the availability of, and contact information for, on- and off-campus resources and services, and coordination with law enforcement, as appropriate.

(7) Participation of victim advocates.

(8) Investigating allegations that alcohol or drugs were involved in the incident, and providing amnesty from disciplinary action if the victim violated the school’s policy when the sexual assault occurred.

(9) The role of the institutional staff supervision.

(10) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating campus sexual violence, domestic violence, dating violence, and stalking cases.

(11) Procedures for anonymous reporting of sexual assault.

(c) 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, to the extent feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students, including counseling, health, mental health, victim advocacy, student advocacy, and legal assistance.

(d) 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 implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, women’s empowerment programming, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the institution’s policy on campus sexual violence, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution’s overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy. Outreach programming shall be included as part of new student orientation.