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FIRE Statement on California “Affirmative Consent” Bill

By February 13, 2014

Campuses nationwide are struggling to combat sexual assault while respecting civil liberties. However well-intentioned, California’s Senate Bill 967, introduced by Senators Kevin de León and Hannah-Beth Jackson, is a serious step in the wrong direction.

In recent years, legal complaints regarding the response to allegations of sexual assault on our nation’s campuses have proliferated. The majority of these complaints have been filed by students who believe that their campuses failed to properly respond to reports of sexual assault. Of late, an increasing number of accused students have also sought legal recourse, alleging that campus tribunals unjustly held them responsible for an offense that constitutes a grave felony off campus. Unifying the complaints from both sides is a deep frustration with the administration of campus policies and practices.

While campus administrators are in many cases doing their best, they are neither qualified nor equipped to respond properly to sexual assault allegations. Student conduct administrators simply lack the investigative ability, impartiality, professional training, and legal knowledge required to reliably adjudicate sexual assault cases. This is no surprise; sexual assault allegations are among the most difficult to handle even for the criminal justice system, which possesses far greater resources and expertise. Yet instead of recognizing that college administrators are unqualified to serve as investigators, finders of fact, and sentencing authorities in campus sexual assault cases, SB 967 entrusts them with still greater responsibility. Injustice will inevitably be the result.

SB 967 codifies the use of the low “preponderance of the evidence” standard (50.01% likelihood) in sexual assault cases on campus. While this standard is used in most civil lawsuits, the reality is that civil lawsuits and college sexual assault proceedings differ in several critical ways that make the preponderance standard inappropriate for campus hearings. First, those facing civil penalties in real courts under the preponderance standard are afforded many fundamental protections that are typically absent from campus tribunals, including impartial judges, unbiased juries of one’s peers, representation by counsel, mandatory “discovery” processes to ensure that all parties have access to relevant information, restrictions on unreliable evidence like hearsay or prior bad acts, and sworn testimony under penalty of perjury. Those accused in campus tribunals are generally denied these protections—but nevertheless are subject to life-changing sanctions based on nothing more than a feeling by campus court participants that they believe one person’s story slightly more. Second, the preponderance standard is inappropriate in light of the considerable ramifications of being labeled a rapist on a student’s educational, professional, and personal prospects. Whereas defendants in civil lawsuits have the option to settle out-of-court and keep the matter private, students found guilty by campus tribunals have no such option, virtually guaranteeing that a negative outcome will have a lifelong effect. By codifying the use of the “preponderance of the evidence” standard in campus sexual assault hearings, SB 967 erodes a crucial due process protection for students accused of serious criminal conduct.

Further, SB 967 massively compounds the problem of determining whether a sexual assault has occurred by mandating “affirmative consent,” a confusing and legally unworkable standard for consent to sexual activity.

Affirmative consent posits that sexual activity is sexual assault unless the non-initiating party’s consent is, as SB 967 puts it, “expressed either by words or clear, unambiguous actions.” (Indeed, as a practical matter, only explicit verbal communications are acceptable; the bill warns that “relying solely on nonverbal communication can lead to misunderstanding.”) Consent must be continuous and “present throughout sexual activity”; if “confusion” over consent arises, “it is essential that the participants stop the activity until the confusion can be clearly resolved.” The bill forbids the accused from pleading confusion over consent as a defense if he or she “did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.”

Should SB 967 become law, there will be no practical, fair, or consistent way for colleges (or, for that matter, courts) to ensure that these newly mandated prerequisites for sexual intercourse are followed. It is impracticable for the government to require students to obtain affirmative consent at each stage of a physical encounter, and to later prove that attainment in a campus hearing. Under this mandate, a student could be found guilty of sexual assault and deemed a rapist simply by being unable to prove she or he obtained explicit verbal consent to every sexual activity throughout a sexual encounter. In reality, SB 967 would render a great deal of legal sexual activity into “sexual assault” and imperil the futures of all students across California.

We note that the concept of affirmative consent was first brought to national attention when it was adopted by Ohio’s historic Antioch College in the early 1990s. When news of the college’s policy became public in 1993, the practical difficulty of adhering to the policy prompted national ridicule so widespread that it was lampooned on Saturday Night Live. (Indeed, the fallout from the policy’s adoption has been cited as a factor in the college’s decline and eventual closing in 2007. It has since reopened.) The awkwardness of enforcing “affirmative consent” rules upon the reality of human sexual behavior has continued to be a popular subject for comedy by television shows such as Chappelle’s Show and New Girl. The humor found in the profound disconnect between the policy’s bureaucratic requirements for sexual interaction and human sexuality as a lived and various experience underscores the serious difficulty that passage of SB 967 would present to campus administrators across California.

FIRE harbors additional concerns about other aspects of the bill. For example, SB 967 in several places refers to students alleging sexual assault as “victims,” effectively presuming accused students’ guilt instead of innocence. The bill does have the positive feature of encouraging colleges to work with outside groups to “make services available to victims, including counseling, health, mental health, victim advocacy, and legal assistance,” but California colleges are free to take these steps already and should be encouraged to do so regardless of the disposition of SB 967.

A recent survey found that just 14% of Americans believe that colleges do a “good job” of handling reports of rape, sexual assault, and sexual harassment. This distressing result is a symptom of the demonstrated inability of campus administrators to effectively and fairly adjudicate allegations of sexual assault, a failure documented by headline after headline in media outlets nationwide. Colleges have a vital role to play in ensuring the well-being of their students; they should be well-equipped to provide resources and counseling to students reporting sexual assault and to take necessary administrative action while criminal complaints are pending. To the extent that the criminal justice system ill-serves sexual assault victims, changes to that system should be considered so that Californians both on and off campus can benefit. But rather than fixing the readily apparent deficiencies of the current campus response to sexual assault, passage of SB 967 will worsen the problems. Indeed, SB 967 would inevitably usher in further litigation from all parties involved, exposing an over-stressed campus judicial system to still more liability and expense.

FIRE hopes California lawmakers will take our concerns, and the concerns of civil libertarians more generally, into consideration as they evaluate SB 967.

Image: California Capitol Building