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 true that the current OCR has demanded this standard, but the law ensures that even if the federal government subsequently changes its mind, the threshold will remain in California.

Second, the law tells colleges (but, bizarrely, only colleges) that they must adjudicate rape claims so that the accused student must prove that he obtained “affirmative consent,” on an ongoing basis, during intercourse. That consent can be verbal or non-verbal, but the legislature never defined what non-verbal consent might be. Unless an accused student had videotapes of all sexual encounters (and thus violates other provisions of California law), it’s hard to see how he could prove that he obtained affirmative consent, much less on an ongoing basis. But don’t take my word for it. When asked how a student could prove he obtained affirmative consent, the bill’s co-sponsor, Assemblywoman Bonnie Lowenthal, said, “Your guess is as good as mine.”

Lowenthal’s quote appears nowhere in Pérez-Peña’s co-authored piece. As has been customary in the paper’s coverage of the campus sexual assault issue, the Times article quotes from no civil liberties groups. (FIRE hasposted comments on-line; Pérez-Peña didn’t even have to pick up his phone.) The article likewise quotes from no defense attorneys. Instead, the sole thrust of the Times story, in which Ian Lovett joined Pérez-Peña on the byline, is whether “affirmative consent” will help address “what many regard as an epidemic of campus sexual assault.” (Pérez-Peña doesn’t even mention the law’s mandate of “preponderance of evidence.”)

Pérez-Peña and Lovett quote from one researcher who states that no evidence exists (one way or the other) of whether “affirmative consent” has any impact on the number of sexual assaults on campus. But, they add in their own voices, “Some administrators and campus activists insist that they see signs that the strategy is working.” To determine the effectiveness, they continue, “experts” cite the need for campus climate surveys. The recent Clemson survey (unmentioned by the Times) gives a sense of how this approach might go awry.

The article’s only mention of how “affirmative consent” might be implemented comes from one of the many self-styled student “activists” who regularly appear in Pérez-Peña’s articles. A Yale student “active in Students Against Sexual Violence” tells the Times that “affirmative consent is an absolutely necessary standard . . . [but] there is always room for improvement in enforcement of these policies.” Translation: even with “affirmative consent,” universities aren’t doing enough to obtain convictions.

Contrast the Times’ wholly one-sided approach with that of Michelle Goldberg in the Nation. In contrast to PP’s opening about the alleged sexual assault “epidemic,” Goldberg opens her piece bluntly: “I’ve been reading everything I can find about California’s new affirmative consent law, and I still can’t quite figure out how it’s going to work in practice.” Goldberg notes the law’s extraordinary vagueness, particularly regarding what constitutes non-verbal consent. “Most of us,” she correctly notes, “know what this kind of consent looks like in practice, but as a legal standard, it’s hard to imagine how it would be implemented.”

Goldberg concludes by lamenting the ideological hypocrisy of the law’s backers. Usually, she observes, progressives “are not comfortable with arguments that overly broad laws are OK because we can trust them to be applied judiciously as opposed to literally. This is particularly true when we’re talking about laws legislating speech and sexual behavior.” The law, she fears, will turn the “vast majority of college students . . . into rapists, victims or both.”

That’s news the Times didn’t see fit to print.

Cases: California: Affirmative Consent Bill Threatens Student Due Process