California and the Terrible, Horrible, No-Good, Very Bad "Affirmative Consent" Law
I wrote a thing. It's very long, kind of rambly, and gets emotional in places. I was originally just going to sit on it. Then I received encouragement from multiple sources that I trust to share it with other people. I also received encouragement, in not so many words, to not be a goddamn coward. When I spend so much of my time telling people that they have the right to speak out and they should use it, it's more than a little hypocritical of me to hide in the dark when my own opportunity comes up.
If you can make it through the whole thing, I'm always interested in hearing what you think.
Its supporters call it “Yes Means Yes.” Its detractors call it “the erosion of due process on the college campus.” It’s California’s SB 967, which greatly expanded the powers of colleges and universities to (for all intents and purposes) prosecute sex crimes, and it was recently signed into state law by Gov. Jerry Brown. New Hampshire is hot on California’s heels to be next in line to show their commitment to fighting sexual assault on campus, and a number of colleges and universities, including Harvard and the SUNY system, have adopted the standards it prescribes all on their own. The “Yes Means Yes” moniker comes from the bill’s signature “affirmative consent” standard for judging cases of alleged sexual assault: in order to say that consent was present, there must now be evidence of an “affirmative, conscious, and voluntary agreement” prior to the sexual conduct in question.
The lines on this issue are very predictably drawn. Civil libertarians, libertarian feminists, and those on the right are mostly against it, with a few exceptions. Communitarians, left-wing and gender feminists, and others on the left are mostly for it, with a few exceptions. Hilariously, those in the latter category have found surprise allies among hated social conservatives, who hope that the new rules will lead to the demise of casual sex on campus.
As for me, I won’t beat around the bush: there’s a chill wind blowing our way. I think anyone who believes in fairness, justice, and the rule of law should be apoplectic. This is a terrible, horrible, no good, very bad law, and if it threatens to come to New York (as it seems to be doing), I will fight it tooth and nail.
Before I get into why this is a terrible, horrible, no good, very bad law, there are a couple of disclaimers that I don’t actually want to make, but that I’m going to, because otherwise somebody else is going to make them part of the conversation and they will become distractions. So here goes:
First of all, let’s take a look at what the law actually does, since that rather important detail is conspicuously missing, or just misunderstood, in many op-eds on all sides of the debate. For your convenience and reading pleasure, here is the full text of the bill, as it was passed.
SB 967 is concerned with the funding of colleges and universities. It adds a new condition under which colleges and universities that receive state funds (in other words, most such institutions in California) must operate in order to retain their state funding. This applies to many private schools, but I will focus here on public schools, because, being public, they actually are considered arms of the state, and their employees government representatives.
The new condition under which colleges and universities must operate is manifold, but I will focus on three of its precepts in particular to demonstrate why this law is so atrocious: 1) they must have an internal system for dealing with accusations of sexual assault or “sexual misconduct;” 2) in determining responsibility or non-responsibility, they must use a “preponderance of the evidence” standard, and 3) in determining whether the accuser consented to the sexual activity in question, they must use an “affirmative consent” or “yes means yes” standard.
“Preponderance of the evidence” is the lowest standard of proof that can be used in an American court system, and is the one typically used in civil cases. While “beyond a reasonable doubt” is generally defined as 95-99% certainty of guilt and “clear and convincing” is defined as 75-80% certainty, “preponderance” only requires greater than 50% certainty - or, as some witty soul first put it, “fifty percent plus a feather.” Preponderance requires a finding of guilt as long as the finder thinks it is slightly more likely than not that the accused is responsible. A friend of mine from Duke had this delightfully caustic response to my explanation of the preponderance standard: “So, by ‘a feather’ you mean ‘not being on the basketball team,’ right?”
“Affirmative consent” is much trickier to define, in part because no two people seem to agree on exactly what it means. (That, all by itself, should set off a couple dozen alarm bells with regards to this law.) According to the text of the bill, however, affirmative consent means a “clear, conscious, and voluntary agreement to engage in sexual activity” that “must be ongoing throughout a sexual activity and can be revoked at any time.” It also states that “the fact of past sexual relations between [partners] should never by itself be assumed to be consent.”
That sounds nice at first pass, doesn’t it? It sounds like clear communication between some people who are going to do something intimate - never a bad thing. But here’s the issue - we aren’t talking about communication between two or more people who are about to have sex, in which case, fine, do what makes all of you comfortable. We’re talking about an actual disciplinary standard that is going to be used to actually punish or not punish people for rape or sexual assault. When such a case is being adjudicated, who gets to decide whether “affirmative consent” was sought and given? How is either story going to be verified - is there going to be an addendum added, as Hans Bader wondered, that says “no lying allowed”? How often must it be sought in order for it to be “ongoing”? What constitutes “clear” agreement - can a moan or a grunt be taken as consent? What counts as incapacitation, and how is the person’s partner (who may also have been drinking) supposed to determine this? Does “past sexual relations” also mean relations in the immediate past - does one have to seek consent for each new sexual act, per the widely mocked Antioch Rules of the early ‘90s? Since consent can be revoked "at any time," can it be revoked after the fact? What about acts for which there is no clear initiator? And, as has been pointed out time and time again, how many of SB 967’s advocates actually follow all of these rules when they have sex? Are they all guilty of raping their partners, probably several times over?
Supporters of the law have dismissed these concerns as nitpicking. But Susan Kruth of the Foundation for Individual Rights in Education has noted that even they seem very unclear on what exactly counts as adequate “affirmative consent”:
UltraViolet, which describes itself as a “new and rapidly growing community of women and men across the U.S. mobilized to fight sexism and expand women’s rights,” recently released a video called “Consent Porn” that they say “perfectly illustrates how [affirmative consent] works.” It features two couples-a pizza delivery guy and a female student, and two men in a laundromat. In the first vignette, Pizza Guy indeed stops mid-kiss to ask the female student if it’s okay for him to touch her clothed hip…
After Pizza Guy expresses regret at apparently having brought the pizza to the wrong room, Student is so overcome with emotion at his consideration that she grabs him by the shoulders and kisses him. Only then does she ask, “Is this okay?” But under California’s new law, she’s already committed sexual assault. She is unambiguously the initiator of this contact. She did not obtain consent before kissing him. He didn’t have time to resist or to protest, but of course, even if he did, the law states unequivocally that “[l]ack of protest or resistance does not mean consent.”
To sum up: in order to maintain their federal funding, public colleges and universities - arms of the government - are now required to hold extralegal sexual assault disciplinary hearings in which a university official with no legal training must decide whether it is slightly more likely than not that an accused student violated a standard for which no one can agree on a definition. The accuser is guaranteed an “advocate” for the proceedings; no such guarantee is made for the accused. Now tell me: does that sound to you like a system likely to produce fair and accurate results? However much Law & Order: SVU would like you to believe it is, “justice” is not actually the same thing as “lots and lots of convictions.”
The idea of checking in with your partner to make sure all is well is a good one. You can practice affirmative consent in your own relationships. You can encourage others to do so. You can even teach workshops that promote it as an ideal. All of those things are fine. But just because something is nice (and indeed, not everyone agrees that this idea of consent sounds so nice) does not mean that you should legally equate not doing it with committing a serious felony.
Speaking of serious felonies: I am by far not the first person to ask this question, but why are colleges holding sexual assault trials in the first place? Rape is a crime. When someone is found guilty of it in the non-college world, (s)he goes to prison, usually for a very long time. When someone is found guilty of sexual assault on a college campus, in the best case scenario - the accused perpetrator is guilty as original sin - the victim can now rest easy knowing that the perpetrator is free to go victimize more people in a different community. Shockingly, this is sometimes used as a defense of campus rape tribunals - that it’s okay to use a lower standard of proof against the accused because (s)he won’t go to prison if found responsible. Of sexually assaulting someone. Apparently, in California, college students deserve more protection from criminal behavior than the rest of the mortals.
The much-quoted figure these days, all the way up to President Obama, is that one in five women students will be victims of sexual assault during college. This comes from a recent Department of Justice study of two universities that has been subject to a lot of criticism for its methodology. I got a B in the only statistics class I ever took, so I’m not going to try to analyze it too much. But for comparison, the absolute most dangerous neighborhood in inner-city Detroit is estimated to have a violent crime victimization rate - all violent crime - of one in seven. If the average college actually has a higher violent crime rate than any neighborhood in America, that doesn’t warrant “affirmative consent” lessons, it practically warrants martial law. As Robert Shibley points out, such figures make the California law a “shamefully inadequate response to…a ‘terrible problem.’” (Of course, if we use the “affirmative consent” standard, which turns a great deal of loving, pleasurable sex into rape, that probably does crank up those numbers quite a bit.) Please tell me again who it is that is not taking sexual assault seriously.
But let’s not be too hard on the supporters too quickly. The Internet contains many defenses of the California law, and I encourage you to read them. Some of them make good points, some of them less so. The weirdest by far has come from Ezra Klein, who decided to take the “so bad it’s good” standard often applied to B-movies and apply it to laws that affect the lives of real people. Especially since so many better thinkers than I have already done the honors, I will not dignify Klein’s horrifying defense of the law with further response.
But let’s try to argue against the good ones, shall we? My intellectual hero, journalist and Kindly Inquisitors author Jonathan Rauch, has said that one should always try to argue against the best possible version of an opponent’s argument, for only then should your argument convince. So that’s what I’ll try to do here, in my own formulation. Anyone who thinks they have a better argument for it should feel free to offer it:
The rate of sexual assault on college campuses is way, way too high - even if we use the National Crime Victimization Survey’s estimate of about 1.1 in one thousand persons nationally, that’s still too many, especially for a community like a college campus. Victims feel that the legal system is stacked against them, and that they will rarely see their attackers punished because they usually cannot prove beyond a reasonable doubt that the accused attacked them. Because a campus is often a closed or semi-closed community, a victim may then be forced to see his or her unpunished attacker on campus, to attend classes with the attacker, even to share living space with the attacker. Surely someone who even believes, in his or her heart and soul, that (s)he was the victim of such a crime, should not be forced to endure that kind of torment - substantially interfering with his or her ability to get an education - simply because it cannot be proven beyond a reasonable doubt that the attack happened. The California law provides for an easy compromise. It avoids criminal proceedings and therefore any possibility of jail or prison for the accused, which means that a higher standard of proof isn’t called for. At the same time, it’s more likely than the criminal justice system to ensure the safety of the accuser, and that the accuser is more likely to be able to continue getting educated in peace, without the fear and trauma that accompany the possibility of constantly being exposed to the accused.
Does that sound like a good, thoughtful, well-intentioned argument? I think it does. I think the impulse to help someone who is suffering is the only good one a person can have. I believe that for the most part, supporters of the law are good, thoughtful, well-intentioned people who have the best interests of students at heart. I would, in fact, argue that people could only support this law if they believed themselves and their loved ones to be invulnerable to its reach. I would never sexually assault someone; what do I have to fear? They imagine that SB 967’s new provisions will be enforced by other good, thoughtful, well-intentioned people who have the best interests of students at heart, and that only bad, boorish people with something to hide will be punished by it.
Therein lies a grievous error. When Rod Blagojevich, Tom DeLay, Mark Ciaverella, Joe Arpaio, and Marion Barry can rise to positions of power through very legitimate means, why would you ever imagine that?
With all due respect, “enforced only by the good and just” is never how we must imagine a new law. It is essential, when considering whether a law should be on the books, to envision how the law will be enforced when it falls into the hands of the corrupt, the wicked, and the stupid, because sometimes such people do come into positions of power. If it were so easy to separate the savory characters from the unsavory, we wouldn’t need laws and courts at all. A good rule should have minimal potential for abuse against you even when your worst enemy is in charge of enforcing it.
Imagine yourself accused under this new law. I don’t care that you would never commit sexual assault, I don’t even care how guilty you are in this hypothetical scenario, just play along with me and imagine yourself accused and standing before a college judicial board. You say consent was given; your former partner says it was not. Since you presumably don’t have a spy camera in your bedroom (and if you do, I don’t want to know about it), the only people who actually know what happened are offering completely different versions of the story. Right now, it’s roughly fifty-fifty. What’s going to be that feather that pushes the decision in one direction or the other?
Now imagine that the person in charge of adjudicating said cases for your college or university is an administrator who considers you a troublemaker. Maybe it’s a professor whom you pissed off in class. If you’re in the Greek system, maybe it’s a staff member who is vocally anti-Greek. Sometimes, you might find that the panel has been instructed to be biased against you - Stanford’s Center for Relationship Abuse Awareness’s handbook for judicial board members warns them to be on the lookout for accused students who “act persuasive and logical” and tells them to “be very, very cautious in accepting a man’s claim that he has been wrongfully accused of abuse or violence.” How well do you think this is going to turn out for you? Under the criminal justice system, people like those listed above would be required to recuse themselves from your case to maintain impartiality, but no such safeguard exists under the average college “justice” system.
In a recent case at Auburn University where a student was found responsible and expelled, the “judge” in charge of hearing the case was a librarian with no legal training who was often confused about how the process was supposed to go. The student’s attorney was allowed to be present, but not to speak. In another recent case at the University of North Dakota, a student was expelled for sexual misconduct even as local police were issuing a warrant for his accuser on the charge of filing a false police report. In yet another recent case, a student at Xavier University was - come on, you know what the outcome was at this point - even though a grand jury did not even find probable cause (a lower standard than preponderance) to indict him. Like you, these men did not think they would ever appear before a college judiciary on sexual misconduct charges. College judiciary boards are equipped to handle academic violations like plagiarism and cheating, but they are very ill-equipped to handle criminal matters when so few of the guiderails of the justice system - intended to guard against bias and error - are present.
But will this really result in a massive increase in Caleb Warners, Joshua Stranges, and Dezmine Wellses hauled before campus tribunals? I will concede a point to the law’s defenders: they say that they expect the standard to rarely be enforced in a disciplinary setting. They’re right; the vast, vast majority of people, or even college students, in California, will probably never have this law enforced against them. Particularly if you are in a healthy, long-term relationship with your partner, the state is probably never going to know or care whether you practice “affirmative consent.”
But, as Megan McArdle pointed out, that a law will rarely be enforced is not a good reason to make it a law. In fact, it’s an argument for doing quite the opposite: “Unenforceable laws weaken our whole legal framework by conceding that really, the whole thing is just an arbitrary exercise of power by authorities -- a theory of justice that has not, I must point out, generally redounded to the benefit of women and minorities.” I present, as illustration, an argument from recent history:
When they were commonplace throughout the 20th century, sodomy laws - that is, laws against “deviate sexual intercourse,” meaning anything other than vaginal intercourse - were relatively rarely enforced in proportion to the number of people who broke them, especially against people who were breaking them in the privacy of their own homes. In my home state of Kentucky, to be charged with sodomy in the first degree was to be charged with an automatic Class B felony. Since sodomy laws often criminalized widely practiced acts like oral and anal sex, regardless of who was performing them, they turned an alarming number of people into criminals simply because they did not adhere to a state standard of what was moral and correct in the bedroom.
However, most people (especially straight people) did not have to worry that this law would be used against them; after all, there were no sex police spying on them from the bedroom window. Does that mean sodomy laws were a-okay?
I would venture that most supporters of SB 967 would answer with a resounding “no.” As well they should. While they were relatively rarely enforced, sodomy laws were heavily abused on the occasions that they were enforced - and are still, even after SCOTUS struck them down in Lawrence v. Texas as gross violations of privacy. A sodomy charge could be added to other charges against a defendant to ensure that if convicted, he would stay in prison longer. Anti-gay law enforcement officers used the power of sodomy laws to aggressively pursue otherwise law-abiding homosexual adults. Police and prosecutors, as it turns out, love vague and overbroad laws, because they make their jobs - arresting “bad” people and getting them convicted of crimes - a lot easier. As Purdue professor Freddie deBoer pointed out in a very thoughtful response to Ezra Klein’s authoritarian nonsense, why do we think the People in Charge are suddenly going to become consistently fair and objective when they’re enforcing this particular vague and overbroad law?
What makes this “affirmative consent” law different? Why should we assume that law enforcement will exercise care and discretion in when and against whom it’s enforced? Could it be because this time, the state is enforcing your standard of what is correct and moral in the bedroom?
I’m reminded of the brilliant climactic scene of the movie Inherit the Wind, when Spencer Tracy jeeringly sums up Fredric March’s view of how good and evil work: “God tells Brady what is good! To be against Brady is to be against God! Must men go to prison because they differ from the self-appointed prophet?” Many supporters of SB 967 have become so fundamentalist in their convictions that they see the nation as divided into two groups: people who agree with them, and rapists.
(Oh, and one more thing: sodomy laws, whatever else can be said against them, were still subject to the “beyond a reasonable doubt” standard of proof and were still adjudicated in criminal courts, not by untrained college administrators, with all the protections guaranteed therein.)
Sodomy laws still have their defenders, in the name of upholding morality and protecting children. Sometimes, they do probably catch people in their nets who may present a danger to children. That doesn’t make it fair and just to use them to “set examples” and trample on innocent people. The same applies to California’s SB 967. It is not acceptable to cut down the innocent in order to get at the guilty. A monologue from Robert Bolt’s A Man for All Seasons, delivered by Thomas More to a future son-in-law who wants him to arrest a man for being “dangerous” perfectly illustrates this point:
ROPER: So you would give the Devil the benefit of law!
MORE: What would you do? Cut a great road through the law to get after the Devil?
ROPER: Yes! I’d cut down every law in England to do that.
MORE: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast - man’s laws, not God’s - and if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil the benefit of the law for my own safety’s sake.
Supporters of SB 967 are Ropers. I don’t mean that as an insult. Roper is not a bad man; he is not ill-intentioned. Roper, in fact, is trying to protect More from a man he knows might do More serious harm. But he mistakenly believes that good people like him should be allowed to bend the rules to get rid of bad people, and needs More to remind him that if one person is allowed to do that, everyone must be allowed to. I would give accused college students the benefit of the law’s protection so that the same will be offered to my friends, my colleagues, and me.
None of what I have written here mitigates the agony inflicted upon victims of sex crimes by perpetrators. Their pain is real, sometimes to the point that it is life-threatening. Their pain should neither be minimized nor forgotten. The impulse of “we have to do something about this” when confronted with a victim whose case cannot be proven in criminal court is not only reasonable, it’s about the only humane response one can have. The hypothetical defender of SB 967 whose argument I laid out earlier poses a question that I don’t think is immediately easy to answer: it’s all well and good to talk about due process and reasonable doubt, but what about the innocent whose life has been turned upside down in this mess? Should helping her (not necessarily, but usually, her) to heal and continue her education not be a top priority?
It should, and colleges should do everything within their bounds to ensure that it is done. Most colleges have a policy of immediate suspension for a student who has been indicted for a felony, to ensure the safety of other students. For cases where the accuser chooses not to involve the police or where the accused is not convicted, fortunately, we have Title IX. Applied fairly and reasonably, and not in the perverse way that it has been interpreted to give college administrations the power of criminal courts, it allows for remedies to be provided to a student who even believes that he or she has been sexually assaulted. Such remedies can include no-cost counseling and support from trained providers, changes in living and scheduling arrangements, no-contact orders, and many other accommodations to ensure that the complainant is allowed to heal from the inflicted injuries fully and peacefully.
There’s something else victims should have available too, something not provided by law: family, friends, mentors, and other people who care about them. If your friend comes to you and tells you she’s been sexually assaulted, kindly do not bog her down with technicalities and legalese and say I gave my blessing to such behavior. Instead, act like a friend. Believe her. Hold her hand. Stay up with her. Listen to her while she talks. Hold her while she cries. Take her to the police, the hospital, a counselor, the Women’s Center, her parents, anywhere she wants to go. Assure her that you love her no matter what and that she doesn’t have to go it alone. Let her know that she’s always going to have someone on her side. Your support is ultimately going to be the thing that best helps her to heal. Do all of this and more, because it’s what good friends do.
But the law is not there to be your friend. Enforcement of the law is far from perfect. We should support efforts like those of District Attorney Kym Worthy of Wayne County, MI to better enforce existing laws against rape. Hey, it looks like even California’s passing some good legislation for a change! But the reason the law exists is to protect us from both the overreach of individuals who could injure us and the overreach of the state that could wrongfully detain us.
The rule of law acknowledges that it’s not always easy to tell for sure who the good people are and who the unsavory characters are, and that the answer can actually change at the drop of a hat. The law acknowledges that even the best among us can make mistakes, so even their accusations must be vetted. The law is there to ensure that society does not mistake vigilantism and vengeance for justice. The law is not always kind, and due process does not always end in results that people consider desirable, or in vindications for the people that the public believes are in the right. But this is the way it must be, because liberal society holds it to be true that it is less unjust to let the guilty walk free than it is to punish the innocent. Those are not precepts to be thrown away when they work for someone you don’t like, even if that someone has caused tremendous-but-unproven pain; they are the cornerstone of what should always be American justice. Because while the law may not always work quite the way that we’d like it to, I guarantee that you’ll want it on your side when the university, the state, or the Devil turns ‘round on you.
In the meantime, if you are having that admirable impulse of “I need to do something to help,” here are some helpful things you can do:
If you can make it through the whole thing, I'm always interested in hearing what you think.
Its supporters call it “Yes Means Yes.” Its detractors call it “the erosion of due process on the college campus.” It’s California’s SB 967, which greatly expanded the powers of colleges and universities to (for all intents and purposes) prosecute sex crimes, and it was recently signed into state law by Gov. Jerry Brown. New Hampshire is hot on California’s heels to be next in line to show their commitment to fighting sexual assault on campus, and a number of colleges and universities, including Harvard and the SUNY system, have adopted the standards it prescribes all on their own. The “Yes Means Yes” moniker comes from the bill’s signature “affirmative consent” standard for judging cases of alleged sexual assault: in order to say that consent was present, there must now be evidence of an “affirmative, conscious, and voluntary agreement” prior to the sexual conduct in question.
The lines on this issue are very predictably drawn. Civil libertarians, libertarian feminists, and those on the right are mostly against it, with a few exceptions. Communitarians, left-wing and gender feminists, and others on the left are mostly for it, with a few exceptions. Hilariously, those in the latter category have found surprise allies among hated social conservatives, who hope that the new rules will lead to the demise of casual sex on campus.
As for me, I won’t beat around the bush: there’s a chill wind blowing our way. I think anyone who believes in fairness, justice, and the rule of law should be apoplectic. This is a terrible, horrible, no good, very bad law, and if it threatens to come to New York (as it seems to be doing), I will fight it tooth and nail.
Before I get into why this is a terrible, horrible, no good, very bad law, there are a couple of disclaimers that I don’t actually want to make, but that I’m going to, because otherwise somebody else is going to make them part of the conversation and they will become distractions. So here goes:
- I am not pro-rape, and I am not on the side of rapists. Rape is one of the most despicable things one person can do to another. It’s a violent, damaging, life-altering crime against your fellow man. A person found guilty of rape should be punished harshly as permitted by the law. Protesting a policy that is theoretically intended to fight rape does not mean you are against fighting rape; it means you are against that policy. I find it darkly amusing that the same people who are about to accuse me of being a rape apologist anyway would likely not have any problem understanding this distinction if I were arguing against the death penalty, mandatory sentencing minimums, or the criminalization of marijuana (all things I also oppose). When I argue against these things, people on the left do not usually call me pro-murder, pro-drug abuse, or pro-crime; it’s only when sex is involved that things get blurry
- I am also not against the idea of affirmative consent. (For those who have avoided the term up to now, I’ll make a shaky attempt to define it in a little while.) Do you and your partner find that using affirmative consent principles helps you both feel safe and comfortable during sex? Fantastic. Bully for you. I’m very happy that it works so well for you. Me, I prefer a little more thrill of discovery - in life in general, it’s often the case that I don’t realize I wanted something to happen until it actually happens. Maybe that means you and I aren’t compatible as sexual partners. That’s okay. I think communication to figure that kind of thing out is good. I am really, really, really not against communication or consent. What I am against is making affirmative consent a standard according to the law, which is very different from a moral or a personal principle - or even a widely held principle.
- The following things are irrelevant to this conversation: whether I have been a victim of sexual assault, whether any of my friends or family have been victims of sexual assault, and what my sex life is like in general. Each of those things has not one effect whatsoever on whether or not this is a good law, and they’re also none of your business.
First of all, let’s take a look at what the law actually does, since that rather important detail is conspicuously missing, or just misunderstood, in many op-eds on all sides of the debate. For your convenience and reading pleasure, here is the full text of the bill, as it was passed.
SB 967 is concerned with the funding of colleges and universities. It adds a new condition under which colleges and universities that receive state funds (in other words, most such institutions in California) must operate in order to retain their state funding. This applies to many private schools, but I will focus here on public schools, because, being public, they actually are considered arms of the state, and their employees government representatives.
The new condition under which colleges and universities must operate is manifold, but I will focus on three of its precepts in particular to demonstrate why this law is so atrocious: 1) they must have an internal system for dealing with accusations of sexual assault or “sexual misconduct;” 2) in determining responsibility or non-responsibility, they must use a “preponderance of the evidence” standard, and 3) in determining whether the accuser consented to the sexual activity in question, they must use an “affirmative consent” or “yes means yes” standard.
“Preponderance of the evidence” is the lowest standard of proof that can be used in an American court system, and is the one typically used in civil cases. While “beyond a reasonable doubt” is generally defined as 95-99% certainty of guilt and “clear and convincing” is defined as 75-80% certainty, “preponderance” only requires greater than 50% certainty - or, as some witty soul first put it, “fifty percent plus a feather.” Preponderance requires a finding of guilt as long as the finder thinks it is slightly more likely than not that the accused is responsible. A friend of mine from Duke had this delightfully caustic response to my explanation of the preponderance standard: “So, by ‘a feather’ you mean ‘not being on the basketball team,’ right?”
“Affirmative consent” is much trickier to define, in part because no two people seem to agree on exactly what it means. (That, all by itself, should set off a couple dozen alarm bells with regards to this law.) According to the text of the bill, however, affirmative consent means a “clear, conscious, and voluntary agreement to engage in sexual activity” that “must be ongoing throughout a sexual activity and can be revoked at any time.” It also states that “the fact of past sexual relations between [partners] should never by itself be assumed to be consent.”
That sounds nice at first pass, doesn’t it? It sounds like clear communication between some people who are going to do something intimate - never a bad thing. But here’s the issue - we aren’t talking about communication between two or more people who are about to have sex, in which case, fine, do what makes all of you comfortable. We’re talking about an actual disciplinary standard that is going to be used to actually punish or not punish people for rape or sexual assault. When such a case is being adjudicated, who gets to decide whether “affirmative consent” was sought and given? How is either story going to be verified - is there going to be an addendum added, as Hans Bader wondered, that says “no lying allowed”? How often must it be sought in order for it to be “ongoing”? What constitutes “clear” agreement - can a moan or a grunt be taken as consent? What counts as incapacitation, and how is the person’s partner (who may also have been drinking) supposed to determine this? Does “past sexual relations” also mean relations in the immediate past - does one have to seek consent for each new sexual act, per the widely mocked Antioch Rules of the early ‘90s? Since consent can be revoked "at any time," can it be revoked after the fact? What about acts for which there is no clear initiator? And, as has been pointed out time and time again, how many of SB 967’s advocates actually follow all of these rules when they have sex? Are they all guilty of raping their partners, probably several times over?
Supporters of the law have dismissed these concerns as nitpicking. But Susan Kruth of the Foundation for Individual Rights in Education has noted that even they seem very unclear on what exactly counts as adequate “affirmative consent”:
UltraViolet, which describes itself as a “new and rapidly growing community of women and men across the U.S. mobilized to fight sexism and expand women’s rights,” recently released a video called “Consent Porn” that they say “perfectly illustrates how [affirmative consent] works.” It features two couples-a pizza delivery guy and a female student, and two men in a laundromat. In the first vignette, Pizza Guy indeed stops mid-kiss to ask the female student if it’s okay for him to touch her clothed hip…
After Pizza Guy expresses regret at apparently having brought the pizza to the wrong room, Student is so overcome with emotion at his consideration that she grabs him by the shoulders and kisses him. Only then does she ask, “Is this okay?” But under California’s new law, she’s already committed sexual assault. She is unambiguously the initiator of this contact. She did not obtain consent before kissing him. He didn’t have time to resist or to protest, but of course, even if he did, the law states unequivocally that “[l]ack of protest or resistance does not mean consent.”
To sum up: in order to maintain their federal funding, public colleges and universities - arms of the government - are now required to hold extralegal sexual assault disciplinary hearings in which a university official with no legal training must decide whether it is slightly more likely than not that an accused student violated a standard for which no one can agree on a definition. The accuser is guaranteed an “advocate” for the proceedings; no such guarantee is made for the accused. Now tell me: does that sound to you like a system likely to produce fair and accurate results? However much Law & Order: SVU would like you to believe it is, “justice” is not actually the same thing as “lots and lots of convictions.”
The idea of checking in with your partner to make sure all is well is a good one. You can practice affirmative consent in your own relationships. You can encourage others to do so. You can even teach workshops that promote it as an ideal. All of those things are fine. But just because something is nice (and indeed, not everyone agrees that this idea of consent sounds so nice) does not mean that you should legally equate not doing it with committing a serious felony.
Speaking of serious felonies: I am by far not the first person to ask this question, but why are colleges holding sexual assault trials in the first place? Rape is a crime. When someone is found guilty of it in the non-college world, (s)he goes to prison, usually for a very long time. When someone is found guilty of sexual assault on a college campus, in the best case scenario - the accused perpetrator is guilty as original sin - the victim can now rest easy knowing that the perpetrator is free to go victimize more people in a different community. Shockingly, this is sometimes used as a defense of campus rape tribunals - that it’s okay to use a lower standard of proof against the accused because (s)he won’t go to prison if found responsible. Of sexually assaulting someone. Apparently, in California, college students deserve more protection from criminal behavior than the rest of the mortals.
The much-quoted figure these days, all the way up to President Obama, is that one in five women students will be victims of sexual assault during college. This comes from a recent Department of Justice study of two universities that has been subject to a lot of criticism for its methodology. I got a B in the only statistics class I ever took, so I’m not going to try to analyze it too much. But for comparison, the absolute most dangerous neighborhood in inner-city Detroit is estimated to have a violent crime victimization rate - all violent crime - of one in seven. If the average college actually has a higher violent crime rate than any neighborhood in America, that doesn’t warrant “affirmative consent” lessons, it practically warrants martial law. As Robert Shibley points out, such figures make the California law a “shamefully inadequate response to…a ‘terrible problem.’” (Of course, if we use the “affirmative consent” standard, which turns a great deal of loving, pleasurable sex into rape, that probably does crank up those numbers quite a bit.) Please tell me again who it is that is not taking sexual assault seriously.
But let’s not be too hard on the supporters too quickly. The Internet contains many defenses of the California law, and I encourage you to read them. Some of them make good points, some of them less so. The weirdest by far has come from Ezra Klein, who decided to take the “so bad it’s good” standard often applied to B-movies and apply it to laws that affect the lives of real people. Especially since so many better thinkers than I have already done the honors, I will not dignify Klein’s horrifying defense of the law with further response.
But let’s try to argue against the good ones, shall we? My intellectual hero, journalist and Kindly Inquisitors author Jonathan Rauch, has said that one should always try to argue against the best possible version of an opponent’s argument, for only then should your argument convince. So that’s what I’ll try to do here, in my own formulation. Anyone who thinks they have a better argument for it should feel free to offer it:
The rate of sexual assault on college campuses is way, way too high - even if we use the National Crime Victimization Survey’s estimate of about 1.1 in one thousand persons nationally, that’s still too many, especially for a community like a college campus. Victims feel that the legal system is stacked against them, and that they will rarely see their attackers punished because they usually cannot prove beyond a reasonable doubt that the accused attacked them. Because a campus is often a closed or semi-closed community, a victim may then be forced to see his or her unpunished attacker on campus, to attend classes with the attacker, even to share living space with the attacker. Surely someone who even believes, in his or her heart and soul, that (s)he was the victim of such a crime, should not be forced to endure that kind of torment - substantially interfering with his or her ability to get an education - simply because it cannot be proven beyond a reasonable doubt that the attack happened. The California law provides for an easy compromise. It avoids criminal proceedings and therefore any possibility of jail or prison for the accused, which means that a higher standard of proof isn’t called for. At the same time, it’s more likely than the criminal justice system to ensure the safety of the accuser, and that the accuser is more likely to be able to continue getting educated in peace, without the fear and trauma that accompany the possibility of constantly being exposed to the accused.
Does that sound like a good, thoughtful, well-intentioned argument? I think it does. I think the impulse to help someone who is suffering is the only good one a person can have. I believe that for the most part, supporters of the law are good, thoughtful, well-intentioned people who have the best interests of students at heart. I would, in fact, argue that people could only support this law if they believed themselves and their loved ones to be invulnerable to its reach. I would never sexually assault someone; what do I have to fear? They imagine that SB 967’s new provisions will be enforced by other good, thoughtful, well-intentioned people who have the best interests of students at heart, and that only bad, boorish people with something to hide will be punished by it.
Therein lies a grievous error. When Rod Blagojevich, Tom DeLay, Mark Ciaverella, Joe Arpaio, and Marion Barry can rise to positions of power through very legitimate means, why would you ever imagine that?
With all due respect, “enforced only by the good and just” is never how we must imagine a new law. It is essential, when considering whether a law should be on the books, to envision how the law will be enforced when it falls into the hands of the corrupt, the wicked, and the stupid, because sometimes such people do come into positions of power. If it were so easy to separate the savory characters from the unsavory, we wouldn’t need laws and courts at all. A good rule should have minimal potential for abuse against you even when your worst enemy is in charge of enforcing it.
Imagine yourself accused under this new law. I don’t care that you would never commit sexual assault, I don’t even care how guilty you are in this hypothetical scenario, just play along with me and imagine yourself accused and standing before a college judicial board. You say consent was given; your former partner says it was not. Since you presumably don’t have a spy camera in your bedroom (and if you do, I don’t want to know about it), the only people who actually know what happened are offering completely different versions of the story. Right now, it’s roughly fifty-fifty. What’s going to be that feather that pushes the decision in one direction or the other?
Now imagine that the person in charge of adjudicating said cases for your college or university is an administrator who considers you a troublemaker. Maybe it’s a professor whom you pissed off in class. If you’re in the Greek system, maybe it’s a staff member who is vocally anti-Greek. Sometimes, you might find that the panel has been instructed to be biased against you - Stanford’s Center for Relationship Abuse Awareness’s handbook for judicial board members warns them to be on the lookout for accused students who “act persuasive and logical” and tells them to “be very, very cautious in accepting a man’s claim that he has been wrongfully accused of abuse or violence.” How well do you think this is going to turn out for you? Under the criminal justice system, people like those listed above would be required to recuse themselves from your case to maintain impartiality, but no such safeguard exists under the average college “justice” system.
In a recent case at Auburn University where a student was found responsible and expelled, the “judge” in charge of hearing the case was a librarian with no legal training who was often confused about how the process was supposed to go. The student’s attorney was allowed to be present, but not to speak. In another recent case at the University of North Dakota, a student was expelled for sexual misconduct even as local police were issuing a warrant for his accuser on the charge of filing a false police report. In yet another recent case, a student at Xavier University was - come on, you know what the outcome was at this point - even though a grand jury did not even find probable cause (a lower standard than preponderance) to indict him. Like you, these men did not think they would ever appear before a college judiciary on sexual misconduct charges. College judiciary boards are equipped to handle academic violations like plagiarism and cheating, but they are very ill-equipped to handle criminal matters when so few of the guiderails of the justice system - intended to guard against bias and error - are present.
But will this really result in a massive increase in Caleb Warners, Joshua Stranges, and Dezmine Wellses hauled before campus tribunals? I will concede a point to the law’s defenders: they say that they expect the standard to rarely be enforced in a disciplinary setting. They’re right; the vast, vast majority of people, or even college students, in California, will probably never have this law enforced against them. Particularly if you are in a healthy, long-term relationship with your partner, the state is probably never going to know or care whether you practice “affirmative consent.”
But, as Megan McArdle pointed out, that a law will rarely be enforced is not a good reason to make it a law. In fact, it’s an argument for doing quite the opposite: “Unenforceable laws weaken our whole legal framework by conceding that really, the whole thing is just an arbitrary exercise of power by authorities -- a theory of justice that has not, I must point out, generally redounded to the benefit of women and minorities.” I present, as illustration, an argument from recent history:
When they were commonplace throughout the 20th century, sodomy laws - that is, laws against “deviate sexual intercourse,” meaning anything other than vaginal intercourse - were relatively rarely enforced in proportion to the number of people who broke them, especially against people who were breaking them in the privacy of their own homes. In my home state of Kentucky, to be charged with sodomy in the first degree was to be charged with an automatic Class B felony. Since sodomy laws often criminalized widely practiced acts like oral and anal sex, regardless of who was performing them, they turned an alarming number of people into criminals simply because they did not adhere to a state standard of what was moral and correct in the bedroom.
However, most people (especially straight people) did not have to worry that this law would be used against them; after all, there were no sex police spying on them from the bedroom window. Does that mean sodomy laws were a-okay?
I would venture that most supporters of SB 967 would answer with a resounding “no.” As well they should. While they were relatively rarely enforced, sodomy laws were heavily abused on the occasions that they were enforced - and are still, even after SCOTUS struck them down in Lawrence v. Texas as gross violations of privacy. A sodomy charge could be added to other charges against a defendant to ensure that if convicted, he would stay in prison longer. Anti-gay law enforcement officers used the power of sodomy laws to aggressively pursue otherwise law-abiding homosexual adults. Police and prosecutors, as it turns out, love vague and overbroad laws, because they make their jobs - arresting “bad” people and getting them convicted of crimes - a lot easier. As Purdue professor Freddie deBoer pointed out in a very thoughtful response to Ezra Klein’s authoritarian nonsense, why do we think the People in Charge are suddenly going to become consistently fair and objective when they’re enforcing this particular vague and overbroad law?
What makes this “affirmative consent” law different? Why should we assume that law enforcement will exercise care and discretion in when and against whom it’s enforced? Could it be because this time, the state is enforcing your standard of what is correct and moral in the bedroom?
I’m reminded of the brilliant climactic scene of the movie Inherit the Wind, when Spencer Tracy jeeringly sums up Fredric March’s view of how good and evil work: “God tells Brady what is good! To be against Brady is to be against God! Must men go to prison because they differ from the self-appointed prophet?” Many supporters of SB 967 have become so fundamentalist in their convictions that they see the nation as divided into two groups: people who agree with them, and rapists.
(Oh, and one more thing: sodomy laws, whatever else can be said against them, were still subject to the “beyond a reasonable doubt” standard of proof and were still adjudicated in criminal courts, not by untrained college administrators, with all the protections guaranteed therein.)
Sodomy laws still have their defenders, in the name of upholding morality and protecting children. Sometimes, they do probably catch people in their nets who may present a danger to children. That doesn’t make it fair and just to use them to “set examples” and trample on innocent people. The same applies to California’s SB 967. It is not acceptable to cut down the innocent in order to get at the guilty. A monologue from Robert Bolt’s A Man for All Seasons, delivered by Thomas More to a future son-in-law who wants him to arrest a man for being “dangerous” perfectly illustrates this point:
ROPER: So you would give the Devil the benefit of law!
MORE: What would you do? Cut a great road through the law to get after the Devil?
ROPER: Yes! I’d cut down every law in England to do that.
MORE: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast - man’s laws, not God’s - and if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil the benefit of the law for my own safety’s sake.
Supporters of SB 967 are Ropers. I don’t mean that as an insult. Roper is not a bad man; he is not ill-intentioned. Roper, in fact, is trying to protect More from a man he knows might do More serious harm. But he mistakenly believes that good people like him should be allowed to bend the rules to get rid of bad people, and needs More to remind him that if one person is allowed to do that, everyone must be allowed to. I would give accused college students the benefit of the law’s protection so that the same will be offered to my friends, my colleagues, and me.
None of what I have written here mitigates the agony inflicted upon victims of sex crimes by perpetrators. Their pain is real, sometimes to the point that it is life-threatening. Their pain should neither be minimized nor forgotten. The impulse of “we have to do something about this” when confronted with a victim whose case cannot be proven in criminal court is not only reasonable, it’s about the only humane response one can have. The hypothetical defender of SB 967 whose argument I laid out earlier poses a question that I don’t think is immediately easy to answer: it’s all well and good to talk about due process and reasonable doubt, but what about the innocent whose life has been turned upside down in this mess? Should helping her (not necessarily, but usually, her) to heal and continue her education not be a top priority?
It should, and colleges should do everything within their bounds to ensure that it is done. Most colleges have a policy of immediate suspension for a student who has been indicted for a felony, to ensure the safety of other students. For cases where the accuser chooses not to involve the police or where the accused is not convicted, fortunately, we have Title IX. Applied fairly and reasonably, and not in the perverse way that it has been interpreted to give college administrations the power of criminal courts, it allows for remedies to be provided to a student who even believes that he or she has been sexually assaulted. Such remedies can include no-cost counseling and support from trained providers, changes in living and scheduling arrangements, no-contact orders, and many other accommodations to ensure that the complainant is allowed to heal from the inflicted injuries fully and peacefully.
There’s something else victims should have available too, something not provided by law: family, friends, mentors, and other people who care about them. If your friend comes to you and tells you she’s been sexually assaulted, kindly do not bog her down with technicalities and legalese and say I gave my blessing to such behavior. Instead, act like a friend. Believe her. Hold her hand. Stay up with her. Listen to her while she talks. Hold her while she cries. Take her to the police, the hospital, a counselor, the Women’s Center, her parents, anywhere she wants to go. Assure her that you love her no matter what and that she doesn’t have to go it alone. Let her know that she’s always going to have someone on her side. Your support is ultimately going to be the thing that best helps her to heal. Do all of this and more, because it’s what good friends do.
But the law is not there to be your friend. Enforcement of the law is far from perfect. We should support efforts like those of District Attorney Kym Worthy of Wayne County, MI to better enforce existing laws against rape. Hey, it looks like even California’s passing some good legislation for a change! But the reason the law exists is to protect us from both the overreach of individuals who could injure us and the overreach of the state that could wrongfully detain us.
The rule of law acknowledges that it’s not always easy to tell for sure who the good people are and who the unsavory characters are, and that the answer can actually change at the drop of a hat. The law acknowledges that even the best among us can make mistakes, so even their accusations must be vetted. The law is there to ensure that society does not mistake vigilantism and vengeance for justice. The law is not always kind, and due process does not always end in results that people consider desirable, or in vindications for the people that the public believes are in the right. But this is the way it must be, because liberal society holds it to be true that it is less unjust to let the guilty walk free than it is to punish the innocent. Those are not precepts to be thrown away when they work for someone you don’t like, even if that someone has caused tremendous-but-unproven pain; they are the cornerstone of what should always be American justice. Because while the law may not always work quite the way that we’d like it to, I guarantee that you’ll want it on your side when the university, the state, or the Devil turns ‘round on you.
In the meantime, if you are having that admirable impulse of “I need to do something to help,” here are some helpful things you can do:
- If you want to help fight for student rights and due process on campus, get involved with or donate to the Foundation for Individual Rights in Education and a new group, Families Advocating for Campus Equality. FIRE in particular is one of my favorite groups because it unites a truly multi-partisan group of people who are all invested in looking out for one another’s rights.
- If you want to actually help victims of rape and sexual assault, get involved with or donate to the Rape, Abuse, and Incest National Network, Safe Horizon, or the Joyful Heart Foundation (and its corollary, End the Backlog, which is devoted to processing the unacceptably large backlog of untested rape kits in major cities across the United States). These organizations are helping and advocating for survivors without steamrolling the rights of the accused or using said survivors to score political points. If you’re on a college campus, you can also ask your student health center and your campus police about resources they have available for victims.