By Spencer Case at National Review Online
The analogy between civil courts and university disciplinary action, often invoked by supporters, is questionable. It is uniquely damaging to carry the stigma of being declared a rapist. Institutions of higher education should not be able to punish a student as a sexual pariah on the basis of a mere 55 percent confidence in that student’s guilt. Moreover, as a February 13 FIRE statement criticizing an earlier draft of SB 967 noted, university students facing disciplinary action do not have the ability to settle out of court, nor are they guaranteed due process.
The bill’s “affirmative consent” provision gives rise to similar concerns. SB 967 mandates “an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.” The burden is on the initiator to ensure that he or she has consent – so understood – and misunderstanding is ruled out as an acceptable excuse.
“I think the ‘affirmative consent’ standard is particularly problematic because it’s so hard to prove,” Cohn said. He added that the SB 967 “almost ensures that there will be a greater number of students expelled or punished with serious questions as to whether or not that’s fair.”
Proponents of SB 967 emphasize that “affirmative consent” provision is that it will make it easier for victims to come forward with complaints, since investigations will place less significance on the absence of a verbal “no.”
“Instead of trying to figure out ‘did they say no?’ it asks ‘did they consent?’” Conlon said. “It takes the status quo and flips it. The status quo is obviously nor working. It seems stacked against survivors.”
In a similar vein, De León’s press release about SB 967’s passage in the senate described the bill as “changing the equation” so that “only ‘yes’ means ‘yes.’”
These quotes by supporters give the impression that the bill replaces an antiquated, overly permissive conception of “consent” with a carefully calibrated higher standard. An earlier version of the bill literally required a verbal “yes,” but that provision was dropped. Without that provision, it’s not clear that “affirmative consent” amounts to more than a redundancy. Tellingly, neither Cohn nor Conlon could provide an example of a sexual encounter that would be permitted before, but not after, acceptance of “affirmative consent” as the standard for sexual consent.
Despite the nebulous language, both supporters and opponents of SB 967 expect that “affirmative consent” provision will lead to more allegations of sexual misconduct at California universities if the bill is ratified. The absence of due-process protections for the accused on campuses make that a troubling development.