California bill won’t solve sexual assault problems on campus By Justin Dillon & Matthew G. Kaiser
The California Legislature has been a national leader in how to create effective public policies. From energy regulation to its work in the state’s prison system, California’s government has shown that it knows how to respond to policy problems. In line with that tradition of excellence, the Legislature now comes to remedy how colleges handle cases of sexual assault on campus — specifically, by requiring college students to obtain “affirmative consent” for sex.
Something clearly needs to be done about how colleges handle sexual assault cases. As recent media accounts have shown, colleges and universities all too often bungle the treatment of victims. They fail to provide resources for victims, they fail to educate students about these issues and they leave many victims feeling as if they should never have reported the assault in the first place. It’s important to remedy that.
The remedy, however, must be consistent with how actual college students actually behave. California’s “affirmative consent” law would not come close to doing that.
Indeed, one wonders what problem this bill is intended to solve.
Is the problem that schools often fail to adequately punish those who engage in sexual assault, as some have claimed? If so, this bill does nothing — it requires no punishment and establishes no guidelines for schools about how to address this conduct.
Is the problem that college students are inadequately educated about what consent in a normal sexual relationship looks like? If so, this bill is a huge step in the wrong direction.
Requiring affirmative consent for each sexual act is neither good nor sensible. It flies in the face of what we know about how sex works, even if we don’t like to admit it in polite company.
The law would require “affirmative, conscious and voluntary agreement to engage in sexual activity.” In the abstract, this sounds unobjectionable. Sex should be both conscious and voluntary.
But what does “affirmative” mean? The law would define it in the negative: “Lack of protest or resistance does not mean consent, nor does silence mean consent.”
Think of how this works in practice. Imagine that two heterosexual college students start kissing in a dorm room. The kissing becomes passionate, and the young man tries to touch the young woman’s breasts. Under an affirmative consent standard, he could not start doing that and rely on her “lack of protest or resistance,” or even her evident enthusiasm. In California, that would be sexual assault.
Instead, he would have to stop and ask for permission. Because permission for one step would not necessarily mean permission for the next step, he would have to stop and request permission each time things were to move forward. Implied consent would be dead. And the era of sex by affidavit would begin.
This is the worst kind of social engineering. It takes a class of conduct that many people engage in, and most of us think is unobjectionable, and makes it punishable. It doesn’t get to what we all agree is a problem — women being coerced into sex. Instead, it hurts people who are doing what very few people see as problematic.
Moreover, the bill asserts that a prior romantic or sexual relationship is not a substitute for affirmative consent. A girlfriend, in other words, can no longer squeeze her boyfriend’s butt without committing sexual assault.
The negative consequences for men who forget these rules would be enormous. The bill would track federal law and require that only a “preponderance of the evidence” to find someone guilty of sexual assault. Such findings typically lead to suspension or expulsion and a permanent mark on a student’s transcript.
Sex is complicated. Sex on college campuses, often among people who haven’t had much of it, is particularly complicated. College students will make mistakes — they will consent to sex they later regret, and sometimes they will consent to sex that they don’t want to have.
But the solution is not to change how people interact with each other and require the sexual equivalent of a password at every stage of the process. The solution is to teach students what consent does and doesn’t look like and to empower them — young men and women alike — to make intelligent, responsible decisions. And that’s something that can’t be legislated — even in California.
Dillon and Kaiser are partners at The Kaiser Law Firm PLLC, based in Washington D.C., and have represented students nationwide in campus