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Multiple states ponder turning federal guidance on campus sexual assault into law

A wave of bills dealing with campus sexual assault are moving through state legislatures, and many of them would codify elements of contentious federal guidelines that deprive accused students of due process rights.

The measures would make it easier for accusations to result in expulsions and the permanent branding of students who may be innocent, without allowing them a chance to defend themselves. Some of the bills would expand the definition of sexual assault by narrowing the definition of consent to the point where nearly any sexual encounter could be considered non-consensual.

Affirmative consent

Lawmakers in Maine, Maryland and Texas want students to be taught and comply with “affirmative consent,” an extreme set of rules for engaging in sexual activity that are almost impossible to follow. Affirmative consent, or “yes means yes” policies require students to obtain “clear, unambiguous, knowing, informed and voluntary agreement between all participants to engage in each act within the course of sexual activity,” as the proposed Maryland law defines it. Other state bills tweak the wording, but the intent is the same.

Critics of affirmative consent – which was once even mocked on Saturday Night Live – point out that what one person finds “unambiguous” may be ambiguous for another. A man may think that because a woman is actively participating in the sexual activity that he has consent, but he could later be accused if she says she was not asked for consent at every step of the encounter.

Consent can also be revoked if the person has been drinking, and although many affirmative consent laws and policies use the word “incapacitation,” in practice, one merely has to say they had been drinking to have consent negated. That’s what happened at Lynn University, where an accusing student claimed she was too drunk to consent, even though campus surveillance video showed her acting and walking normally before and after the encounter. She was even able to juggle two cups full of liquid while balancing on one foot in order to kick an elevator door open.

Consent also can be revoked if the accuser says he or she felt pressured into having sex or was too afraid to leave. Accused students have no way to prove their innocence, because school administrators are taught to believe accusers and have consistently ignored exculpatory evidence.

Asking for this kind of consent at every step of a sexual encounter turns a passionate act into a question-and-answer session, since non-verbal communication can be seen as ambiguous (though affirmative consent policies don’t always require verbal consent). And it makes it incredibly easy to turn a consensual encounter into a non-consensual one by saying the accused asked for consent to do this, but didn’t explicitly ask for consent to do that, even though he may have felt he had consent based on the accuser’s actions.

When one proponent of affirmative consent tried to teach the concept to high schoolers, she was asked if it meant asking for consent every 10 minutes. The instructor replied “pretty much,” but added that “it’s not a timing thing, but whoever initiates things to another level has to ask.”

Legislators in California, Connecticut and Mississippi want to codify parts of the 2011 “Dear Colleague” letter from the Education Department’s Office for Civil Rights. The letter, which did not carry the force of law but threatened to remove federal funding if schools didn’t comply, made it much easier for innocent students to be accused of sexual assault.

The California bill, introduced by the same state senator who introduced the original affirmative consent bill, Kevin de Leon, would codify the protections of the anti-sex discrimination statute known as Title IX (which already apply to colleges and universities), but would also “codify the clarifying guidance of the United States Department of Education Office for Civil Rights providing that all forms of student-on-student sexual violence, including rape, sexual assault, sexual battery, and sexual coercion, are sexual harassment subject to the requirements of Title IX and outlining the duties of educational institutions to respond to that harassment.”

The 2011 “Dear Colleague” letter required schools to more forcefully adjudicate accusations of sexual assault, using an easier-to-meet “preponderance of evidence” standard that meant a student could be branded a rapist even if administrators were 49.99 percent sure a sexual assault didn’t occur. The letter also strongly encouraged schools to deny an accused student the right to cross-examine his accuser and the witnesses against him.

Connecticut lawmakers want schools to report a multitude of information to the state’s General Assembly, including the number of sexual assaults reported and the outcomes of the disciplinary processes. The bill would also require schools to provide the Assembly their sexual assault policies and any revisions in the future. While schools would be required to provide the “most recent concise written notification of the rights and options of a student or employee who reports or discloses an alleged violation” of sexual assault policies, it does not require the schools to provide the Assembly with information on the rights and options of those accused of sexual misconduct.

The Mississippi bill, which passed the state House but died in a Senate committee, would have required schools to use the “clear and convincing” standard of proof, which is higher than the preponderance standard but lower than the “beyond a reasonable doubt” standard used in criminal court. It doesn’t allow effective cross-examination, as students can only submit questions ahead of time. The bill included language guaranteeing equal protections to accusers and accused, although in practice school administrators have frequently failed to follow their own policies on students’ rights.

Onerous requirements

A bill from Texas would require anyone who has been informed of a sexual assault, or conduct that may constitute sexual misconduct, to report the incident within 48 hours.

The bill, introduced by Democratic state Sen. Kirk Watson, would require reporters to provide the alleged victim’s name and address, unless the alleged victim wants to remain anonymous. Failing to disclose information about an alleged sexual assault within 48 hours could result in jail time for the person who didn’t report.

As Reason’s Robby Soave noted while discussing how even some activists don’t like the bill, “What if a staff member witnesses something he believes could constitute sexual harassment, doesn’t know whether the victim wants to remain anonymous, and feels compelled by the law to report?”

Watson is also behind Texas’ affirmative consent bill, and four other measures dealing with campus sexual assault.

One for due process

In Georgia, state Rep. Earl Ehrhart’s bill that would protect accused students from biased and poorly trained school bureaucrats easily passed the state House earlier this month.

The bill would prohibit schools from conducting their own investigation of a sexual assault accusation while a police investigation was underway, and schools would be required to report sexual assaults that met the state definition of a felony to law enforcement. Schools could, after a hearing that included due process protections for the accused, suspend the student while the criminal justice system worked.

Critics of the Georgia bill claim it would limit a school’s ability to respond to sexual assault, while proponents suggest the bill takes sexual assault more seriously by requiring police involvement for potentially dangerous students.

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