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. Specifically, civil libertarians have voiced doubts about whether a law of this nature can be fairly administered, especially given the nature of human sexuality as a lived experience.
Media outlets including Newsweek, The New Republic, the San Francisco Chronicle, the Los Angeles Times, and The Nation have all cited civil liberties and/or due process concerns about the bill. Yet the Times’ article makes no mention of these concerns, focusing instead on critics who simply doubt the law’s potential effectiveness in reducing the incidence of campus rape. This is a startling oversight, made all the more baffling by the fact that so many other major publications have addressed the law’s potential to cause real confusion when it comes time to determine whether a sexual act was or was not consensual.
This problem is far from merely theoretical. As The Boston Globe reported recently, increasing numbers of students across the country have filed lawsuits against their colleges claiming that they were wrongly found guilty of sexual assault. Passage of a law that further muddies the waters when it comes to due process and fair administration—one of the law’s authors responded to a question about how an innocent party could prove that he or she got consent by saying “your guess is as good as mine”—will only make the problem worse.
By making no mention of the severe problems with this bill from a civil liberties perspective, the Times has done its readers a disservice.