Few people would disagree that when it comes to sex, no means no, and that if someone fails to respect this, then he or she has committed the despicable crime of sexual assault. As a result of the long overdue cultural shift on this front which is taking hold across the nation, colleges are increasingly revising their sexual misconduct policies and rewriting the rules of consent; indeed, the California senate recently approved SB 967, which requires “affirmative consent” every step of the way.
However, the dangerously ambiguous nature of the language used in the bill, its dramatic lowering of the standard of proof for student misconduct investigations and its misguided assumptions regarding the overall nature of human sexuality should guide Governor Jerry Brown’s decision to veto this well-intentioned but overzealous bill.
Sexual assault on American college campuses is epidemic; the 2007 Campus Sexual Assault Study commissioned by the U.S. Department of Justice indicated that almost one in five women were sexually assaulted on college campuses nationwide, according to Time Magazine. There are severe methodological limitations here, since the study only sampled two major universities with a response rate of 42 percent; a previously administered study released in 2005 by the Bureau of Justice Statistics had double the response rate and found that this figure was closer to one in forty women. It is important to note that this study utilized figures that were at least 12 years old.
Regardless of the actual number, any reasonable regulations that help to chip away at these statistics should be gladly welcomed and speedily passed into law. Although the current SB 967 bill seeks this end, its current formulation is entirely unreasonable and unenforceable; furthermore, the unintended consequences that are likely to occur from its implementation will pose a threat to all sexually active college students within the state of California.
First, the language is completely ambiguous: it stipulates that “Consent must be ongoing throughout a sexual encounter and can be revoked at any time.” At what stages of intercourse should consent be expressed? How often should it be expressed? Your guess is as good as mine. Looking at the plain text of the bill, “ongoing” might indeed require that both parties express consent during the actual commission of intercourse; as such, this requirement is entirely illogical. In effect, the California legislature is prescribing the steps that must occur prior to sexual intercourse, and possibly during the act itself.
Noticeably absent from the bill is how the participants must provide consent. Does non-verbal communication (such as a head nod) satisfy the requirements of SB 967? If a woman passionately draws her partner in closer during an embrace, does this suffice? The current language of the bill fails to provide us with any answers, and as such, it leaves the interpretation of this ambiguous text to the courts.
For me, that is unacceptable. I expect my lawmakers to fashion laws that clearly delineate what is, and what is not, law-abiding behavior. However, as the bill currently stands, Californians cannot be reasonable expected to know whether their actions conform to the law.
The Austrian philosopher Friedrich Hayek famously constructed a well-cited definition of the rule of law, in which he posited that, “The government in all actions is bound by rules fixed and announced before-hand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.” By this definition, SB 967 clearly undermines the rule of law.
Additionally, SB 967 critically threatens the rights of the accused by its reduction in the standard of proof required for determining if the accused violated the Student Conduct Code. Instead of relying on the “beyond a reasonable doubt” standard, which is used in criminal proceedings, the bill lowers it to “preponderance of the evidence,” which simply asks whether it is “more likely than not” that the student breached the Student Conduct Code.
In practice, this burdens the accused with a de facto presumption of guilt, and shifts the burden of proof onto the accused. In these tribunals, there is no mandatory discovery (exchanging of evidence). It removes legal protections such as restrictions upon the introduction of hearsay evidence and prior bad act evidence (introducing evidence of prior crimes to illustrate the accused’s criminal nature). It subjects the accused to life-changing sanctions, such as expulsion from college, based upon little more than the fact that one side’s testimony was slightly more believable than the other’s. Call me crazy, but I don’t exactly trust non-judges to apply legal standards correctly.
Finally, the law brazenly tramples all over normal patterns of human sexuality. Traditionally, the buildup to sex almost invariably involves intricate non-verbal communication; yes, there may be some talking, but there is an enormous difference between whispering something sweet in your partner’s ear and executing a legally mandated, verbal contract. This requirement takes sexiness out of sex.
The ambiguous text of SB 967 undermines the rule of law by providing more questions than answers, and students cannot reasonably be expected to know whether their sexual behavior conforms to its mandates. Additionally, it dangerously removes many of the legal protections that the criminal and civil legal system afford to the accused. Lastly, it is premised upon illogical conceptions of human sexuality; expecting humans, and especially college students, to comply with the “ongoing consent” requirement is optimistic and dubious at best.
The well-intentioned, yet potentially disastrous, nature of this bill reminds me of an age-old proverb: the road to hell is paved with good intentions.