Cali Legislators Want to Tell College Kids When to Have Sex

The California state legislature is eagerly
jumping into bed with college students but really killing the mood
with some unsexy rules.

State Sen. Kevin de Leon (D–Los Angeles) has introduced a
bill that would require state universities to set strict parameters
on what constitutes consensual sex. According to the
text of SB 967, the student initiating sexual contact must
establish “affirmative consent,” defined as:

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
be 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.

The bill also explicitly lists several circumstances in which
the initiator can be convicted of rape even after obtaining
consent:

(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.

College administrators must use a “preponderance of the
evidence” standard. If they determine that it was 50.0001 percent
more likely than not that a sexual encounter violated one of the
above conditions, they must find the offender guilty, according to
the bill.

The bill also requires that universities provide resources and
support to victims of sexual assault. It says nothing, however,
about the rights of the accused. Given that many universities
already violate due process by depriving accused students of their
rights to attorneys, juries of their peers, and opportunities to
cross-examine their accusers, it seems unlikely that California
universities would interpret this bill as a call to adhere to the
requirements of the Fifth and Sixth Amendments.

In a statement to LA Weekly, de Leon
made clear that his bill is a response to the federal
government’s recent investigation into the sexual assault response
practices of universities around the country:

The federal government is currently investigating 55 colleges
and universities. Obviously, there is a problem. SB 967 will change
the equation so the system is not stacked against survivors by
establishing an affirmative consent policy to make it clear that
only ‘yes’ means ‘yes.’

Indeed, if SB 967 becomes law, the system will certainly not be
stacked against the survivors.

As LA Weekly points out, some of the bill’s
requirements are already in effect under existing law. In
California, it is already illegal to have sex with someone who is
asleep or incapacitated. If students think they were the victims of
assault, they should contact the police, who will investigate the
matter under the same rules that apply to everyone: students and
non-students alike.

A student indicted for rape by police authorities enjoys
constitutional rights, however. A student indicted for rape by a
campus judiciary might as well be facing the Spanish
Inquisition.

As an example,
consider the fate of Occidental College’s John Doe, who was
accused of rape even though written evidence firmly established
that his accuser had consented to sex. The police cleared him, but
campus administrators found him guilty anyway. He was expelled.

Colleges have already demonstrated that they are
frequently incapable of fairly investigating these cases. Now
that the legislature is pressuring them to put out, they are likely
to do even worse.

And society moves one step closer to the kind of thing predicted
in this
famous Dave Chapelle skit.