California has become the first state to require all schools that receive state funding to adopt an affirmative consent standard in their sexual assault policies. This standard requires that sexual activity between — or, I suppose, among — people must be clearly and unambiguously consensual throughout the activity. Furthermore, such consent can be revoked by any participant at any time during the activity.
Of course, there comes a point in the sexual act when revocation is physiologically impossible. Maybe the authors of this law are as unfamiliar with that reality as they seem to be with basic principles of justice. That would explain how they could formulate such a poorly considered, problematic and ultimately unrealistic piece of legislation.
The law, dubbed “yes means yes,” attempts to address the incidents of rape occurring among college students, which is reportedly epidemic. The law’s supporters quote statistics from the Centers for Disease Control and Prevention, which when not busy misplacing vials of deadly microbes, somehow has determined that nearly 20 percent of women will be raped in their lifetimes, 80 percent of them before age 24.
The CDC reports similarly alarming statistics for men, finding that 20 percent of male high school and college students had experienced sexual coercion that they said led to having sex against their will.
There is no question that males have been victims of sexual abuse by other males, but it is a safe bet that most of the concern about sexual abuse involves heterosexual sex. And, given the biological realties of heterosexual sex, unless someone spiked the male’s beer with Viagra and the female was an Amazon, in the vast majority of sexual assault cases females are victimized by males. While California’s affirmative consent law technically applies to both sexes, realistically it is primarily directed at sexual assault of women by men.
So, unless there are cameras rolling with live microphones recording the sex event and clearly picking up “yes, yes, yes” being spoken by both (or all) parties throughout the event, any accusation of sexual assault will be “she said, he said.” And guess who will win that dispute in the campus courts?
Like so many well-intentioned attempts to legislate away a real evil, California’s “yes means yes” law is more about reaction than solution. Politicians want to be perceived as problem solvers quickly addressing public concerns, and so, not infrequently, they pass boneheaded laws like this one.
In blatant contradiction of America’s most fundamental principle of justice, which is presumed innocence, California’s affirmative consent law explicitly places the burden of proof on the accused, who must demonstrate that he (or unlikely she) took “reasonable steps ... to ascertain whether the complainant affirmatively consented.” Essentially, the accused is guilty until proven innocent.
And how does an innocent person prove consent, especially under this carelessly constructed law’s vague, subjective definition of consensual sex? When asked that question, one advocate of the law responded, “Your guess is as good as mine.” These dangerous do-gooders are unsure of what constitutes a violation under this defective law, and are just crossing their fingers hoping it won’t be abused.
But it will be, if for no other reason than hell hath no fury like a woman scorned. What happens when a consensual sexual encounter is interpreted as a budding relationship by the woman but considered a one-night stand by the man; then the rejected, perhaps humiliated, woman reinterprets the sexual encounter as coerced? By simply accusing her lover of sexual abuse, he is condemned under the California law and expelled from college. Sweet vengeance for her, bitter injustice for him.
Such injustice happens even without the California law. Recently, the University of Florida indefinitely suspended freshman quarterback Treon Harris after he was accused of sexual assault — not convicted, but accused. Harris may well be guilty, but he is being punished before being proven guilty under proper due process of law.
Maybe the classic case of injustice over alleged sexual abuse is the Duke University incident. In 2006, three members of Duke’s lacrosse team were accused by a woman of raping her at a party. The three accused young men were indicted by a crusading local district attorney. Meanwhile, in a frantic rush to judgment, the university fired the lacrosse team’s coach and canceled the remainder of the 2006 lacrosse season.
Under investigation by North Carolina’s state attorney general, the woman’s story fell apart and she admitted lying about the rape. All charges against the three young men were dismissed. Nevertheless, a whole lot of folks had been severely punished and their reputations sullied, all because a false accusation of sexual assault was sufficient for “campus justice.” It is estimated that Duke incurred more than $100 million in legal fees and settlements to the coach, the falsely accused students and others adversely affected by this injustice.
Rape of one’s body is an atrocious, soul damaging evil that decent people everywhere want severely punished and permanently prevented, but rape of one’s name, honor and opportunity by false accusation is also a soul-damaging evil. Passing goofy laws like California’s “yes means yes” law will not prevent sexual abuse, but it will corrode justice, punish the innocent and cause much collateral damage.
Randy Alcorn is a Santa Barbara political observer.