California: Affirmative Consent Bill Threatens Student Due Process

Category: Due Process

On September 28, 2014, California Governor Jerry Brown signed into law SB 967, a bill that requires California’s university and college students to obtain verifiable “affirmative consent” for sexual activity. Under this bill, students must receive not just explicit consent to sexual activity but ongoing consent—although it is impossible to tell how often students must pause to receive explicit consent in order for their sexual activity to qualify as consensual. The bill also codifies use of the “preponderance of the evidence” standard of proof, meaning that a student accused of sexual assault will be found guilty if fact-finders determine it is only slightly more likely than not that the accused committed assault.

  • Progressive Schizophrenia About Campus Rape

    October 28, 2014

    By Hans Bader at Examiner.com The Talmud says that “he who is kind to the cruel is cruel to the kind.” That aptly describes many “progressives,” who coddle rapists while seeking to brand innocent people as rapists by redefining consensual sex as rape merely because it occurred without verbal authorization. Fourteen hundred girls were sexually assaulted in Rotherham, England, while the left-wing ideologues in the localLabour Party government looked the other way out of political correctness (because theperpetrators were Pakistanis, while the victims were working-class white girls): “Children as young as 11 in the Yorkshire town of Rotherham were raped by multiple perpetrators, abducted, trafficked to other cities in England, beaten and intimidated, by […]

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  • The Underside of “Affirmative Consent”

    October 19, 2014

    By Masha Gershman at The American Interest Two college students lie on a dorm room bed, there are soft whispers and light touching, but escalating passions are abruptly interrupted when one student hands the other a sexual consent form. The students’ lawyers, suddenly revealed to be sitting on either side of the bed, dive into heated negotiations over what sexual activities will and will not transpire that evening. That comical video was produced in 2004, but it may seem less absurd now than it did a decade ago. California’s “Affirmative Consent” bill, signed into law by Gov. Jerry Brown last month, sets […]

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  • State-Mandated Dirty Talk In California: Jerry Brown Signs SB 967 Into Law

    October 17, 2014

    By Hans Bader at Examiner.com Last month, California Governor Jerry Brown signed into law a bill regulating college students’ romantic lives, which I discussed earlier. This misleading “affirmative consent” law, SB 967, appears to require “agreement” to each form of “sexual activity” a couple engages in on campus, without defining what “sexual activity” is. In the words of one of its supporters, it thus requires “state-mandated dirty talk” during sexual encounters. (Some colleges with “affirmative consent” policies classify even ordinary “kissing” as “sexual activity” that can constitute “sexual assault,”notes Ramesh Ponnuru at Bloomberg News, while other colleges define it to include little more than sex and […]

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  • The ‘Yes Means Yes’ World

    October 17, 2014

    By Jake New at Inside Higher Ed When the sexual assault prevention group Culture of Respect attended the Dartmouth Summit on Sexual Assault in July to promote its forthcoming website, the group went by a different name. The nonprofit passed out business cards and marketing all emblazoned with the phrase “No Means No.” For the last two decades, that’s been the slogan of choice for sexual assault prevention efforts, and just a few months ago it seemed like a perfect fit for the new organization. But in the weeks leading up to No Means No’s official launch, the organization began having second thoughts. […]

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  • What People Get Wrong About The Yes Means Yes Law

    October 16, 2014

    By Ezra Klein at Vox.com When I first looked at California’s Yes Means Yes law, I thought it was ridiculous. The law redefines consent such that the everyday actions of loving couples would technically be unprosecuted assault. Meanwhile it did nothing to resolve the core problem in college sexual assault cases: one party says there was consent, the other party says there wasn’t, and there’s no clear way to settle the dispute. My intention, initially, was to write a column ripping into it. So I’m sympathetic to the case against Yes Means Yes. But as I read more about the bill, talked to […]

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  • For Some ‘Affirmative Consent’ Supporters, Injustice Is A Feature, Not A Bug

    October 16, 2014

    By Robert Shibley at The Daily Caller California’s new law requiring “affirmative consent” for sex on campus is “terrible.” It “tries to change, through brute legislative force, the most private and intimate of adult acts.” Two college seniors in a loving, committed relationship could “fail its test” if they “slip naturally from cuddling to sex.” It’s “extreme” and plagued with “overreach.” Often glibly referred to as the “yes means yes” law, California’s Senate Bill 967 has made national news and spawned copycats across the country including the enormous State University of New York system, but not without opposition. The above quotes don’t come […]

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  • Yes Means Yes: The Big Consent Debate

    October 15, 2014

    By Hanna Kozlowska at The New York Times The debate about rape culture and consent in sexual intercourse has spread from college campuses to the front pages of national media, and even to state legislatures. A particularly heated discussion about consent surrounding a case of alleged sexual assault in the publishing world has unfolded online. In recent years, many colleges have failed to report cases of sexual assault to the authorities, inciting a nationwide movement to hold the schools accountable. Today, the Department of Education is investigating 55 institutions for their handling of sexual abuse claims, while the White House started a […]

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  • The Times Gets “Affirmative Consent” Wrong

    September 30, 2014

    By KC Johnson at Minding The Campus The Times and the Nation have both published articles on California’s “affirmative consent” bill, the litigator’s dream signed into law Sunday by Governor Jerry Brown. One piece was responsible journalism; the other was agitprop. Given that Richard Pérez-Peña co-authored the Times article, it’s not hard to guess which was agitprop. The new California law requires colleges to weaken due process protections for accused students in two ways. First, it mandates that all schools in the state use the “preponderance-of-evidence” standard (without ensuring that accused students have all the protections of civil litigants, with which preponderance-of-evidence is usually associated). It’s […]

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  • How ‘Yes Means Yes’ Defines Sexual Assault

    September 29, 2014

    By Elizabeth Hagerdorn at Newsy.com “She didn’t say no” will no longer cut it as a defense for campus rape in California. The state is now the first in the nation to adopt a so-called “yes means yes” sexual assault rule. Signed by Gov. Jerry Brown Sunday, the law requires all colleges and universities accepting student financial aid to investigate sexual assault cases under a new standard of affirmative consent. (Video via University of California, Los Angeles) Affirmative consent is needed from both parties engaged in sexual activity and is defined in the bill as an “affirmative, conscious, and voluntary agreement […]

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  • California Enacts Nation’s First ‘Yes Means Yes’ Law

    September 29, 2014

    By Blake Neff at The Daily Caller After several weeks of waiting, California Gov. Jerry Brown has signed into law a controversial measure that requires every university in the state receiving state financial aid to adopt a new definition of sexual assault. Under criminal law, rape and sexual assault occur when one person forces another into sex despite the denial of consent, a standard commonly referred to as “no means no.” The new California standard, however, is one commonly referred to as “only yes means yes.” Under this standard, a sex act can only be presumed as consensual if both […]

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  • California Says ‘Yes’ to Sex on College Campuses

    September 29, 2014

    By Natalie Kitroeff at Bloomberg Businessweek Before having sex, students at California colleges that receive state funding must now get a clear indication that both participants agree to the act, according to a new bill signed by Governor Jerry Brown. “Lack of protest or resistance does not mean consent, nor does silence mean consent,” reads the law, which defines consent as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” The law also specifies that consent “can be revoked at any time” during sex. The bill is the latest effort in the government’s wide-reaching campaign to crack down on […]

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  • Schools Preach ‘Enthusiastic’ Yes in Sex Consent Education

    September 29, 2014

    By Emanuella Grinberg at CNN Thousands of freshmen at the University of California-Berkeley swiped their student cards last week at the doors of Zellerbach Hall and filed into the dark auditorium for one of the few mandatory sessions in their three-week welcome program. Dealing with sexual harassment, alcohol and stress were on the 90-minute “Bear Pact” agenda — much of what you might expect in a freshman orientation, said 17-year-old Alexandra Yoon-Hendricks, who attended one of three sessions offered. One topic, however, caught her by surprise: the definition of sexual consent, the way we let others know what we’re up for, […]

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  • New Law Sets Bar for Sexual Consent on California’s Campuses

    September 29, 2014

    By Stav Ziv at Newsweek California’s latest attempt to combat sexual assault on campus is a new law that sets the bar for sexual consent, commonly referred to as the “yes means yes” rule. The bill was signed into law by California Governor Jerry Brown Sunday and requires “affirmative consent” and other policies to be adopted by higher education institutions that are recipients of state funds for student financial assistance. The bill had previously passed the Senate and Assembly in August. Advocacy groups celebrated the bill’s passing, which affects community colleges and the California State University and University of California […]

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  • California Gov. Jerry Brown Signs Landmark ‘Yes Means Yes’ Sexual Consent Law

    September 29, 2014

    By Katie Sola at Mashable California Gov. Jerry Brown signed a bill Sunday mandating that sexual partners on college campuses must give “affirmative, conscious, and voluntary agreement.” By definition, a drugged, drunk or unconscious person cannot give consent, and silence or lack of resistance does not constitute consent, according to the new law. In order to receive state funding for student financial aid, colleges will also have to provide victims with confidential reporting, counseling and access to a victim advocates. Campus officials investigating rape complaints will have to undergo trauma-based training, too. California is the first state in the nation to sign such legislation. […]

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  • Legislative Rush on Campus Sexual Assault Threatens Student Rights

    September 29, 2014

    By Joe Cohn at The Hill When it comes to handling campus sexual assault, colleges are flunking out. Headline after headline documents this failure in depressing detail, from ignoring complainants’ allegations to trying accused students in campus kangaroo courts. In response, state and federal lawmakers have rushed to pass legislative fixes. But despite admirable intentions, these efforts double down on a broken campus system—and threaten student rights to due process and privacy. Take the federal Campus Accountability and Safety Act (CASA), introduced in July by a bipartisan group of lawmakers including Sens. Kirsten Gillibrand (D-N.Y.), Claire McCaskill (D-Mo.), and Marco […]

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  • Dems Stop Blocking Aid for Rape Victims, Keep Equating Consensual Sex with Rape

    September 25, 2014

    By Hans Bader at Examiner.com Senate Democrats have finally stopped blocking a rape kit bill needed to identify and prosecute thousands of rapists in unsolved cases. National Review reports:The bill’s House sponsor noted that “the Debbie Smith Act has been called the most important anti-rape legislation ever signed into law, because it provides substantial federal funds to help states and localities work through DNA evidence backlogs.” Senate Minority Leader Mitch McConnell (R-KY) criticized Democrats for holding up the bill in April. “I’m very happy that we could reauthorize this important piece of legislation.” “The bill passed the House of Representatives a few months ago on voice vote. […]

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  • TOO DRUNK TO CONSENT: A Leaked Sexual Assault Investigation Highlights The Latest Campus Debate

    September 15, 2014

    By Peter Jacobs at Business Insider Occidental College is a small liberal arts school in the Eagle Rock area of Los Angeles that for years was best known as the institution where Barack Obama used to smoke cigarettes and hang out with “Marxist professors and feminist structuralists and punk rock performance poets,” as he wrote in his memoir “Dreams of My Father.” But in recent years it’s become better known as a flashpoint in the campus sexual assault crisis. An ongoing legal dispute over a drunken sexual encounter between two freshmen, which occurred one year ago last week at the college, […]

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  • State of Consent in California

    September 12, 2014

    By Marrie Lobel at The Huffington Post As college students file onto campuses across the country with crammed backpacks and surging hormones, California Senate Bill 967 patiently rests on Governor Brown’s desk awaiting his signature. Nothing defines the college experience like frat parties and alcohol fueled debauchery but in response to headlines filled with “Campus Rape” and “Sexual Assault” state lawmakers took steps to temper the sexual behavior of students enrolled in universities and colleges across the state by passing legislation adopting affirmative consent. This isn’t the first time affirmative consent appeared in the news; Antioch College made morning headlines and night-time […]

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  • Who’s Afraid to Look Soft on Campus Rape?

    September 11, 2014

    By Debra J. Saunders at Townhall.com In its wisdom (such as it is), the California Legislature passed a measure that would change the standard of sexual consent on the state’s college campuses. Gov. Jerry Brown should veto this bill. If the University of California and other institutions that receive state-funded student aid want to demonstrate they have “no tolerance for any form of sexual violence” when students report rape as state Sen. Kevin de Leon has argued, then they should call the cops, not academic panels. The American Association of University Women, which supports SB 967, wrote a missive titled “5 Ways […]

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  • Colleges Are Rewriting What Consent Means to Address Sexual Assault

    September 8, 2014

    By Tyler Kingkade at The Huffington Post The days of “no means no” are giving way to “only yes means yes.” People perked their ears in August when California passed the first state-mandated collegiate consent policy. All California colleges receiving state funds would need to adopt an “affirmative consent” standard in their sexual violence prevention education for students and in adjudication of campus rape cases. In short, affirmative consent means “only yes means yes,” rather than “no means no,” and it requires both parties to get unambiguous, clear, affirmative consent in sexual interactions. The University of California system backed the bill; […]

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  • Schools Preach ‘Enthusiastic’ Yes in Sex Consent Education

    September 3, 2014

    By Emanuella Grinberg at CNN Thousands of freshmen at the University of California-Berkeley swiped their student cards last week at the doors of Zellerbach Hall and filed into the dark auditorium for one of the few mandatory sessions in their three-week welcome program. Dealing with sexual harassment, alcohol and stress were on the 90-minute “Bear Pact” agenda — much of what you might expect in a freshman orientation, said 17-year-old Alexandra Yoon-Hendricks, who attended one of three sessions offered. One topic, however, caught her by surprise: the definition of sexual consent, the way we let others know what we’re up for, be […]

    » Read More

  • California Bill Defines What It Means to Say ‘Yes’ to Sex

    August 29, 2014

    By Gail Sullivan at The Washington Post The California state senate unanimously approved a bill on Thursday that defines when “yes” means “yes” to sex. Instead of “no means no” – the phrase commonly associated with sexual assault prevention – the law would require “affirmative, conscious, and voluntary agreement” by each party to engage in sexual activity. If Gov. Jerry Brown (D) signs the bill into law – he has until the end of September – colleges and universities would have to adopt the so-called affirmative consent standard to continue receiving state funds for student financial aid. The move comes as universities […]

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  • California Lawmakers Pass ‘Affirmative Consent’ Sexual Assault Bill

    August 29, 2014

    By Eyder Peralta at NPR California is one step closer to becoming the first state to require colleges and universities “to adopt a standard of unambiguous consent among students engaging in sexual activity,” The Los Angeles Times reports. The California Senate gave the bill unanimous approval on Thursday, and it is now headed to the governor’s office. The Times adds: “Along with a comprehensive prevention program, colleges would be required to help victims of sexual assault seek medical care, counseling, legal assistance and other services. “Students engaging in sexual activity would first need ‘affirmative consent’ from both parties — a clear […]

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  • California’s ‘Yes Means Yes’ Bill: How It Addresses Campus Sexual Assault

    August 29, 2014

    By Stacy Teicher Khadaroo at The Christian Science Monitor California will become the first state to require colleges and universities to set a standard of “affirmative consent” for sexual activity, if a bill passed Thursday is signed into law by Gov. Jerry Brown (D). The mantra for rape prevention on college campuses used to be “no means no.” But prevention advocates have been pushing for a shift to “yes means yes.” It’s about “making it clear that the responsibility for sexual violence should be placed on the perpetrator … and people should have the right to be free from sexual impositions,” […]

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  • California Legislature Passes ‘Yes Means Yes’ Standard for College Sexual Assault Policies

    August 28, 2014

    By Judy Lin at The Huffington Post SACRAMENTO, Calif. (AP) — State lawmakers on Thursday passed a bill that would make California the first state to define when “yes means yes” while investigating sexual assaults on college campuses. The Senate unanimously passed SB967 as states and universities across the U.S. are under pressure to change how they handle rape allegations. The bill now goes to Gov. Jerry Brown, who has not indicated his stance on the bill. Sen. Kevin de Leon, D-Los Angeles, said his bill would begin a paradigm shift in how California campuses prevent and investigate sexual assault. Rather […]

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  • California Nears Passage of ‘Affirmative Consent’ Rape Law

    August 27, 2014

    By Blake Neff at The Daily Caller California is on the brink of enacting a new law which would require all colleges receiving money from the state to operate on an only “yes means yes” standard when evaluating claims of sexual assault. The bill was passed by the state’s General Assembly by a decisive 52-16 vote. It previously passed the Senate in May, but will have to be re-approved due to a handful of amendments made to the bill. If it is once again approved, which is expected, it will go to the desk of Gov. Jerry Brown. The so-called “affirmative […]

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  • University Of California, Cal State University Systems Back Affirmative Consent Legislation

    August 25, 2014

    By Tyler Kingkade at The Huffington Post University of California President Janet Napolitano announced Monday she’s putting her support behind legislation to require colleges in her state to adopt affirmative consent standards. The bill, proposed by state Sen. Kevin de León (D), would require higher education institutions receiving state funding to use affirmative consent, or “only yes means yes,” in determining whether a sexual assault took place. The California State University system has also taken a position in support of De León’s bill, CSU spokesman Michael Uhlenkamp told The Huffington Post on Monday. The proposed consent standard would further stipulate an existing relationship, intoxication and […]

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  • Proposed Law Says You’ve Got To Say ‘Yes’ Before There’s Sexual Consent

    August 14, 2014

    By Angela Carone at KPBS Three years ago, Aryle Butler was a freshman at University of California Berkeley when she won a coveted position. She would be a summer research assistant on a Berkeley project in another state. The school year ended and Butler, who grew up in East Los Angeles, got on a plane to head to the research site. “It was the first time I’d ever flown anywhere,” she said. “It was the first time I’d been out of the state of California.” Butler said it seemed like a great opportunity, until suddenly it wasn’t. While she was […]

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  • Do College Students Really Need a Law to Say No to Sex?

    June 20, 2014

    By Steven Greenhut at Reason Online SACRAMENTO — Democrats routinely accuse Republicans of wanting to put the government into the bedroom whenever they support limits on gay rights. So it’s odd that California’s Democratic leaders are advancing a bill that would literally insert the state into the most intimate bedroom moments. S.B. 967 would require all California colleges and universities that accept state financial aid to adopt sexual-behavior policies that include a standard by which students must provide their “affirmative consent” before engaging in a wide range of sexual activity. And a simple “yes” might not suffice. As a senate analysis explains, the bill “requires consent […]

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  • Only Yes Means Yes

    June 9, 2014

    By Ry Rivard at Inside Higher Ed A bill that’s passed the California Senate with the backing of a powerful lawmaker would require many of California’s 2.3 million college students to make sure they have a “yes” — not just not a “no” — before they have sex. The proposal would shift the burden of proof in campus sexual assault cases in which the accused cites consent as the defense to those accused, rather than those making the allegations. California’s public colleges and most of the private colleges would be required to adopt a sexual assault policy that mandates students […]

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  • Students Question ‘Affirmative Consent’ Bill Designed to Combat Sexual Assaults

    June 8, 2014

    By Josh Dulaney at Los Angeles Daily News LONG BEACH >> A bill on its way to the state Assembly mandates that California’s public universities adopt a policy requiring college students to obtain ongoing consent throughout a sexual encounter. Senate Bill 967, introduced by state Sens. Kevin de Leon, D-Los Angeles, and Hannah-Beth Jackson, D-Santa Barbara, requires Cal State University, the University of California and community college districts to adopt campus anti-sexual violence policies that include an affirmative consent standard. The bill, which was co-authored by Assemblywoman Bonnie Lowenthal, D-Long Beach, passed the state Senate 27-9 on May 29 and […]

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  • Activists Raise Alarm About California Sex Assault Bill

    June 2, 2014

    By Blake Neff at The Daily Caller Legal experts and higher education activists are issuing warnings about a new bill under consideration in California that would dictate how state schools respond to allegations of sexual assault. The bill, passed through California’s Senate 27-9 last Thursday, would require any school receiving state money to have an “affirmative consent standard” for their policies regarding sexual misconduct. It must still be approved by the state Assembly. In other words, a student must have clear-and-express positive consent from another person before initiating sexual contact, or else they may be found liable for sexual assault by […]

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  • Connecticut Lawmaker Makes Uncompelling Argument in Support of ‘Affirmative Consent’ Standard

    June 8, 2015

    On May 19, Connecticut’s state Senate passed an “affirmative consent” bill, which would require public and private colleges and universities to use an “affirmative consent” standard in determining whether a sexual encounter is consensual. Statements from one of the bill’s co-sponsors suggest, though, that she doesn’t quite have a handle on how the standard would be implemented on campus or on the serious jeopardy the standard poses to the fundamental principle of due process. The bill, SB 636, defines affirmative consent as “an active, unambiguous and voluntary agreement by a person to engage in sexual activity with another person that […]

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  • CUNY Board of Trustees Approves New Sexual Misconduct Policy

    December 2, 2014

    Yesterday, the City University of New York (CUNY) Board of Trustees approved a new sexual misconduct policy aimed at providing clarity and consistency as to how CUNY schools handle allegations of sexual harassment and sexual assault. Though the policy is not, to FIRE’s knowledge, posted in full online, excerpts from the policy and news coverage indicate the following: one dodged bullet, notable procedural safeguards for accused students, and a provision to watch out for when the full text is released. First, the dodged bullet: Critics were successful in persuading the Board not to eliminate a provision in the old policy […]

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  • What Ezra Klein Gets Wrong about the ‘Yes Means Yes’ Law in California

    October 17, 2014

    On Monday, Vox co-founder Ezra Klein penned an op-ed about how he firmly supported the affirmative consent bill recently passed in California despite his candid acknowledgment that the bill was in fact “terrible.” The general tenor of his column, which I discussed in The Daily Caller yesterday, was that you can’t make an omelet without breaking a few eggs—the eggs being people unjustly found guilty of rape. Critics on the left and the right were equally appalled, as well they—or anyone concerned with civil liberties—should have been. Under this barrage of well-deserved criticism, Klein returned with a longer piece yesterday, […]

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  • Shibley in ‘Daily Caller’ on Ezra Klein’s Support for ‘Terrible’ Affirmative Consent Law

    October 16, 2014

    Yesterday, Vox co-founder Ezra Klein wrote in detail about why he supports California’s new law requiring that college and university students in the state receive ongoing, affirmative consent for sex. In his piece, Klein calls the bill “terrible” but argues that “[i]ts overreach is precisely its value.” FIRE strongly disagrees, and our Senior Vice President Robert Shibley explained why Klein’s article is so troubling in an article for The Daily Caller today. Robert reviews FIRE’s objections to the law, such as its vague requirement for “ongoing” affirmations of consent and the fact that it effectively shifts the burden of proof […]

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  • Harvard Law Faculty Members Blast New Sexual Harassment Policy; National Debate Rages Over ‘Affirmative Consent’ Law

    October 15, 2014

    BOSTON, Oct. 15, 2014—Today, 28 members of the Harvard Law School faculty released a statement in The Boston Globe strongly objecting to Harvard University’s new sexual harassment policy. The Harvard faculty’s open letter reflects growing concerns among many commentators about new laws, federal guidance, and campus policies that sacrifice due process and constitutional values like “innocent until proven guilty” in order to address sexual misconduct on campus. “We are gratified to see so many Harvard Law faculty members speak out against Harvard University’s participation in what is a continued and inexcusable disregard for student and faculty due process rights,” said FIRE […]

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  • Even Affirmative Consent Advocates Seem Confused About Affirmative Consent

    October 6, 2014

    FIRE and many others continue to criticize the vague requirements of California’s new law requiring the state’s university and college students to obtain verifiable, ongoing “affirmative consent” for sexual activity. Among other problems, supporters have not clearly explained just how often one must explicitly ask for permission in order for consent to be considered “ongoing.” On a KPBS Radio segment on the issue earlier this week (and featuring my colleague Joe Cohn), host Tom Fudge asked victims’ attorney Jessica Pride whether the bill “mean[s] that a person has to ask not one, but many questions? Now may I touch your breasts, now may I […]

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  • FIRE’s Shibley Notes Missing Voices in ‘New York Times’ Article on ‘Affirmative Consent’

    October 2, 2014

    Earlier this week, FIRE’s Robert Shibley wrote a letter to the public editor of The New York Times, Margaret Sullivan, in response to a Times article on California’s new law requiring college students to give and receive “affirmative consent” for sex. Here’s Robert’s letter in full: Dear Ms. Sullivan: Richard Pérez-Peña and Ian Lovett’s September 29, 2014, article, “California Law on Sexual Consent Pleases Many but Leaves Some Doubters,” neglects to mention some of the most powerful arguments of the “doubters” and, we fear, leaves the reader with a false impression about the nature of worries about the new law. […]

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  • Joe Cohn Writes for ‘The Hill’ on Campus Sexual Assault Legislation

    September 29, 2014

    Torch readers may already be familiar with the Campus Accountability and Safety Act (CASA), proposed federal legislation that aims to improve colleges’ and universities’ responses to allegations of sexual assault. As FIRE wrote when the bill was introduced in July, CASA takes some important steps in taking cases away from the jurisdiction of university athletic departments and facilitating the involvement of law enforcement agencies. But the bill also includes provisions that may exacerbate the already significant problem of accused students being denied a fair hearing. In an op-ed for The Hill published today, FIRE Legislative and Policy Director Joe Cohn […]

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  • California Governor Signs ‘Affirmative Consent’ Bill

    September 29, 2014

    Yesterday, California Governor Jerry Brown signed into law SB 967, a bill that will require California’s university and college students to obtain verifiable “affirmative consent” for sexual activity. As FIRE has pointed out here on The Torch, under this bill students must receive not just explicit consent to sexual activity but ongoing consent—although it is impossible to tell how often students must pause to receive explicit consent in order for their sexual activity to qualify as consensual. The bill also codifies use of the “preponderance of the evidence” standard of proof, meaning that a student accused of sexual assault will […]

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  • Former Regent Warns of UC’s ‘Disregard for Constitutional Rights’

    September 17, 2014

    Today is Constitution Day, and there is no better way to celebrate than by making sure you and your friends (and your enemies!) know your constitutional rights. Earlier this month, Velma Montoya, a former member of the University of California (UC) Board of Regents and former chairwoman of the California Advisory Committee to the U.S. Commission on Civil Rights, responded to recent censorship at California universities by urging the state’s students to learn about the Constitution so they can stand up for their rights. Everyone should heed Montoya’s message. As Torch readers know, colleges across the country maintain policies that […]

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  • Due Process Advocates Take Critical Look at How Colleges Are Dealing with Sexual Assault Allegations

    September 15, 2014

    With colleges and universities revising their sexual assault policies for the new academic year and legislation on the horizon that could have serious repercussions for campus due process, it is critically important for policymakers to stay committed to protecting the rights of all students. Advocates for due process are stepping up to ensure that as new rules for dealing with campus sexual assault are crafted, key legal principles are not forgotten. To start, higher ed attorney and former college administrator Gary Pavela reminds readers of The Chronicle of Higher Education today that “‘[d]ue process’ is more than a procedural checklist”—it requires […]

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  • ‘SF Chronicle’ Columnist Latest to Voice Opposition to California’s SB 967

    September 12, 2014

    Joining the editorial boards of the Los Angeles Times and the Orange County Register, columnist Debra Saunders took to the pages of the San Francisco Chronicle yesterday to criticize California legislation that would require colleges and universities receiving state funds to adopt an “affirmative consent” policy for campus sexual misconduct. FIRE criticized the legislation, Senate Bill 967, in a statement issued earlier this year. The bill has passed both houses of the California State Legislature and now awaits action from Governor Jerry Brown. Examining the legislation, Saunders writes that supporters of the bill are well-intentioned, but she concludes that SB […]

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  • California SB 967 Supporters Ignore Due Process Concerns

    August 15, 2014

    Back in February, FIRE expressed concerns about California’s Senate Bill 967, which attempts to address the issue of campus sexual assault by requiring colleges receiving state-funded student aid to implement an “affirmative consent” standard in their sexual assault policies. Yesterday, KPBS in San Diego shared FIRE Legislative and Policy Director Joe Cohn’s comments about why the bill will endanger due process for students accused of sexual assault, as well as statements from supporters of the bill that are worth discussing.

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  • California ‘Affirmative Consent’ Bill Puts Colleges in Untenable Position

    June 2, 2014

    Colleges are in an increasingly untenable position when it comes to the sexual autonomy of their students, and the house of cards is going to come crashing down sooner or later.

    Last week, the California State Senate approved SB 967, a bill that would require colleges receiving state-funded student aid to use an “affirmative consent” standard in their sexual assault policies.

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  • FIRE Statement on California “Affirmative Consent” Bill

    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 […]

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