By Katie Sola at Mashable
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.
The new law comes at a time of intense national focus on campus sexual assault, after female students at high-profile colleges including Harvard, Amherst and Columbia accused officials of mishandling their rape cases. In response, President Barack Obama established atask force to reduce the epidemic of sexual assault on college campuses.
In July, a report revealed the extent of the campus rape crisis, finding that 20% of colleges did not investigate the assaults they reported to the U.S. Department of Education, and 40% had not investigated a single assault in the past five years.
State Sen. Kevin de Leon introduced the bill and the California legislature passed it last month.
“Every student deserves a learning environment that is safe and healthy,” the Los Angeles Democrat said in a statement. “The State of California will not allow schools to sweep rape cases under the rug. We’ve shifted the conversation regarding sexual assault to one of prevention, justice, and healing.”
The bill met no Republican opposition in the state Senate, but Assembly Republicans “questioned whether statewide legislation is an appropriate venue to define sexual consent between two people,” according to the AP. A Los Angeles Times editorial also said it would be “extremely difficult and extraordinarily intrusive to micromanage sex so closely.”
According to Cohn, the bill reverses the principle of “innocent until proven guilty.” An accused student would have to prove in a college hearing that he or she did get consent.
Hearings will continue to operate under the “preponderance of evidence,” standard, meaning that campus officials will have to find it more likely than not that a crime was committed. This is a more lax standard than in criminal courts, where charges must be proved beyond a reasonable doubt. Requiring expressed consent in the hearings, rather than just a lack of the word “no,” could broadens the number of situations in which students could find themselves guilty of assault.
Pundits and activists have welcomed the bill, claiming it will reduce victim blaming.
“Instead of starting the investigation by asking if the victim said no — and how she said no and whether her no was good enough to get her out of unwanted sex — the investigation focuses on the actions of the accused,” Amanda Marcotte, a blogger who focuses on feminism and politics, wrote for Slate.
Savannah Badalich, a UCLA student and founder of activist group 7000 in Solidarity, described the legislation as “amazing.”
“It’s going to educate an entire new generation of students on what consent is and what consent is not … that the absence of a no is not a yes,” she said.