Zenon Evans, ReasonThe 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.
Robby Soave is a staff editor at Reason.com.