OP-ED: Young Californian men beware: You could be branded a rapist By Ashe Schow
Gov. Jerry Brown, D-Calif., has signed into law the state’s controversial “yes means yes” sexual consent bill for disciplinary procedures at public colleges, which defines consent narrowly and leaves accused students without due process rights.
California’s bill, S.B.967, is the first in the nation to define consent as an “affirmative, conscious, and voluntary agreement,” but also codify into law that a “lack of protest or resistance does not mean consent, nor does silence mean consent.”
Non-verbal consent, such as a nod, is acceptable under the law, but because the law’s text requires consent to be “ongoing throughout a sexual activity and can be revoked at any time,” the likelihood that a university could determine signals were misinterpreted is high.
That’s because the law gives no due process rights to the accused. It requires universities provide accusers (labeled “victims,” which itself suggests a bias) with counseling services, but doesn’t offer any services for the accused.
The law also codifies the “preponderance of evidence” standard for campus disciplinary proceedings instead of the “without a reasonable doubt” criminal standard. This is a low threshold for establishing guilt and means that a panel of campus advisers has to be just 50.01 percent sure the accuser is telling the truth.
The Obama administration, citing exaggerated statistics on campus sexual assault, has put pressure on colleges and universities to combat sexual assault using this standard, which will likely result in more young men being branded as rapists whether they are or not.
Without due process rights for the accused — like access to legal representation or the ability to cross-examine the accuser — miscarriages of justice will occur. In many such cases, the police refuse to press charges because “he said, she said” may prove insufficient evidence for a criminal trial under procedures that fit within constitutional guidelines.