Most Read
Image 01 Image 02 Image 03

California Seeks to Redefine Consensual Campus Sex as Rape

California Seeks to Redefine Consensual Campus Sex as Rape

How does classifying most consensual sex as rape help rape victims?

http://youtu.be/QwQmYSASlXo

How does classifying most consensual sex as rape help rape victims?

As a lawyer who has handled rape and sexual harassment cases, I can’t imagine how. But this radical result is what some want to happen in California.

In endorsing a bill in the California legislature that would require “affirmative consent” before sex can occur on campus, the editorial boards of the Sacramento and Fresno Bee and the Daily Californian advocated that sex be treated as “sexual assault” unless the participants discuss it “out loud” before sex, and “demonstrate they obtained verbal ‘affirmative consent’ before engaging in sexual activity.”

Never mind that consent to most sex is non-verbal, and that rape has historically been understood to be an act against someone’s will, rather than simply a non-violent act that they did not consent to in advance. Perhaps in response to the bill, the University of California, on February 25, adopted a policy requiring affirmative consent not just to sex, but to every form of “physical sexual activity” engaged in.

The affirmative-consent bill, Senate Bill 967, does not expressly require verbal permission to demonstrate consent, although it warns that “relying solely on nonverbal communication can lead to misunderstanding.”

But supporters of the bill are very clear about their desire to require verbal discussion or haggling prior to sex.

The Fresno Bee praised the bill because “it adopts in campus disciplinary cases the ‘affirmative consent standard,’ which means that ‘yes’ only means ‘yes’ if it is said out loud.” The Daily Californian declared that “the proposal’s requirement that defendants in a sexual assault case demonstrate they obtained verbal ‘affirmative consent’ before engaging in sexual activity makes SB 967 a step in the right direction.”

Since most couples have engaged in sex without “verbal” consent, supporters of the bill are effectively redefining most people, and most happily-married couples, as rapists. By demanding verbal discussion before sex, they are also meddling in people’s sex lives in a prurient fashion.  (Whether consent is explicit is often inversely related to whether sex is really welcome, with grudgingly consensual acts often being preceded by more explicit discussion and haggling than acts that are truly welcomed and enjoyed, as I explain here).

Requiring people to have verbal discussions before sex violates their privacy rights, under the logic of Supreme Court decisions such as Lawrence v. Texas (2003), which struck down Texas’s sodomy law, and federal appeals court decisions like Wilson v. Taylor (1984), which ruled that dating relationships are protected against unwarranted meddling by the Constitutional freedom of intimate association.

It also serves no legitimate purpose, since even supporters of the bill, like Tara Culp-Ressler have on other occasions admitted that sexual violence is not the result of mixed signals: studies show that people who commit sexual violence are almost always aware that what they are doing is against the will of their victims, rather than the assault being the product of “blurred” communications.

Defining sex as rape merely because there was no verbal discussion in advance trivializes rape and brands innocent people as rapists (including some people who themselves have been sexually victimized in the past).

Disturbingly, it’s not just sex they want to regulate, but also “sexual activity” in general. The bill may require affirmative consent before multiple steps in the process of foreplay that leads to sex, even between couples who have engaged in the same pattern of foreplay before on countless occasions.

The bill states:

“’Affirmative consent’ is a freely and affirmatively communicated willingness to participate in particular sexual activity or behavior, expressed either by words or clear, unambiguous actions. . . The existence of a dating relationship between the persons involved, or the fact of a past sexual relationship, shall not provide the basis for an assumption of consent.”

This disregards common sense, since what people intend or consent to is often illustrated by the history or nature of their relationship, such as when courts determine the intent of the parties to a contract by looking at the past course of dealings between the parties.

In addition to endangering privacy rights, SB 967 also contains provisions that could undermine students’ due process rights, such as mandating a low standard of proof for discipline, and encouraging anonymous allegations, as I explained in a letter published last month in the Sacramento Bee. The bill’s requirements apply not just to public colleges, but also to certain private colleges.

On February 25, the University of California system appears to have essentially adopted most of the requirements of SB 967, in a new policy defining “sexual assault” and “sexual violence,” to include some conduct that is not violent at all.

What concerns me most is that the policy defines “sexual assault” to require “unambiguous” “affirmative” consent prior not just to penetration (which is not always unreasonable if consent is defined to include non-verbal cues as well as verbal responses), but also “physical sexual activity” in general.

Effectively, this might ban foreplay as it commonly occurs among married and unmarried couples alike, as I explain in more detail at this link.

Yet, the University of California policy says:

“Sexual Assault occurs when physical sexual activity is engaged without the consent of the other person or when the other person is unable to consent to the activity. . . .Consent is informed. Consent is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. . .Consent means positive cooperation in the act or expression of intent to engage in the act . . . Consent to some form of sexual activity does not imply consent to other forms of sexual activity. Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion. A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. . .Consent must be ongoing throughout a sexual encounter.”

Although this language is vague (at one point, it allows consent to be based on “positive cooperation,” which might extend beyond consent in advance), it clearly defines some sex and sexual activity as sexual assault on campus, even if it would be perfectly legal off campus (it does so even more clearly than SB 967 does).

It does that even though college students are largely adults who have the right to vote, get married, and serve in the military. For example, students have First Amendment rights that are largely “coextensive” with their rights in society generally, as the Supreme Court has indicated in decisions such as Papish v. University of Missouri Curators, Healy v. James, and Rosenberger v. University of Virginia. (Disclosure: I used to practice education law for a living.).

The assumption seems to be that California’s general definition of sexual assault, which applies off campus, is too narrow. But this assumption is dubious, and in a few rare situations existing law is already too broad, as I discuss here.

(Featured Image: YouTube – Sex Consent – The Legal Take On Love)

Hans Bader is a senior attorney at the Competitive Enterprise Institute. Before joining CEI, Hans was Senior Counsel at the Center for Individual Rights. Hans blogs regularly at the OpenMarket.org and is an occasional contributor to Legal Insurrection and College Insurrection.

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments

Juba Doobai! | March 10, 2014 at 8:43 am

You gotta love the Commie crowd. They are effectively doing what Judaeo-Christian preaching has been sometimes unsuccessful at: returning America to pre-marital morality with men being th prime movers of this new state of affairs. It’s simply wonderful. The quirk in this change though is that it’s the guys who get to wear the scarlet letter if they don’t tor he line that Catherine MacKinnon long ago drew for them.

While not an advocate of pre- or extra-marital sex, it is impossible not be lost in admiration at what the Commie crowd has accomplished since the 60’s: homosexual sex is fabulous, wherever it’s found. It’s fine, virtuous, fives you a good smell, gives you a good taste, makes you speak the truth, and gives you wisdom, knowledge and understanding. It’s so good that schools are teaching little kids that the anus is a sexual organ.

On the other hand, all heterosexual sex is rape. Homosexual men are paragons of virtue, unless they’re Catholic priests, of course. Homosexual Boy Scout leaders are the bomb. Heterosexual men? Monsters, I tell you! Monsters!

Let’s sit back and welcome the return to a more celibate morality in which young men and women wait until marriage for sex. Oops! MacKinnon said even marital sex is rape!

I R A Darth Aggie | March 10, 2014 at 8:45 am

And people look at me funny when I say that hookers prostitutes escorts are the way to go…

have you ever noticed that the people who come up with these cockamamie laws are really miserable? I’m serious. This just isn’t the kind of idea that occurs to people when they’re happy and satisfied.

How does classifying most consensual sex as rape help rape victims?

One of those things only the liberal mind can comprehend.

If they get this, it’s only a matter of time till it’s “written consent”. And someone makes a written consent app for smartphones.

Am I to believe that a man who would rape a woman might not also be one who lied about receiving consent?

Maybe sex will require hand stamps indicating the level of sexual activity that is approved.

    johnnycab23513 in reply to katiejane. | March 10, 2014 at 12:47 pm

    If they go this route. consent of both parties should be required to be written and posted on a campus bulletin board for a period of at least 72 hours prior to consummation of the act. This would enable to separate the Flukes (1000 dollars a year for rubbers) from the ladies.

      Sanddog in reply to johnnycab23513. | March 10, 2014 at 2:14 pm

      Perhaps next they’ll devise a permit system. They can make it similar to the ATF form 4473 and require the campus to keep all records for 20 years.

If the government can define consent more narrowly, so that it must be given verbally, then what is to stop government from defining it more broadly, so that consent can be found of the basis of a woman’s having worn sexy clothing? These laws may purport to be about campus rape, but they really represent an assertion of the government’s right to regulate people’s sex lives, which I would have thought was a violation of Roe v. Wade (among other things).

    Oops, cursor slipped, accidental downrate. Sorry!

    Anyway, I meant to say, since it’s all statute law, there isn’t anything stopping the government from eliminating the crime of rape altogether. It’s not going to, nor should it, but if the question is taken literally, there’s nothing except political reality and public outcry to stop government from doing just that. It’s just… unlikely.

Don’t you know? They don’t CARE about helping rape victims.

All they care about is that they LOOK like they are.

The truth is they do almost nothing to help ACTUAL rape victims. So they redefine what a ‘rape’ is, so they can claim hey helped X number of ‘victims’.

Who would have thought that today’s progressives are really throwbacks to the Victorian era.

Is there an App for campus sex? And if one has to sign a permission slip what about counterfeit signatures?

How remarkably weak the women of American college campi must seem, if they need this kind of “protection”.

Perhaps we need to revisit the whole “co-ed” idea, and segragate these delicate flowers from the ravishing males.

As I understand the term consensual, two parties come to an understanding about ‘something.” The issue they concur on could be sensual/emotional, moral or legal or all three combined. They form a consensus of either “Yes” being “yes” or “No” being “No.” They both give their consent to the outcome of their consensus. What am I missing here?

I think someone from Vox.com should explain this strange new vagary simply because it comes from low information thinkers and is meant for low information thinkers who do not understand the words “Yes” and “No.”

Any bets that this will only be applied against men?

    Juba Doobai! in reply to Rusty Bill. | March 10, 2014 at 11:38 am

    Only against heterosexual men who, as the whole world knows, are barbarically into rapine and plunder so the delicate flowers of femininity must be protected from them. Whoever came up with this law has big sexual issues.

I remember being involved in a discussion about the men on campus, and being astounded to hear the guys I knew and dated referred to as “animals.” These were people I knew and trusted, and who were respectful of me. How could they be “animals”?

Well, I did know how to say “no.” Drawing a line was never a problem for me.

This is not to belittle real rape victims.

There’s just a big difference between the violent crime that is rape, and the gross awkwardness of inexperience.

    Juba Doobai! in reply to Valerie. | March 10, 2014 at 11:42 am

    Young women these days don’t seem to know that most guys are pretty decent people.

    This whole thing us ironic. Men gave been indoctrinated into being whipped wusses now they’re finding out that’s not good enough. Goal posts moved again.

What this means is:

– Get it in weiting
– Make a video recording of the “yes”

Bye, bye love
Bye, bye romance

It also means stupidity has become epidemic.

I think that it is just more of the War on Boys, or, in this case, War on Men. Sure, on occasion, females take advantage of males. But, for the most part, males pursue, and females play a bit coy, and often give in slowly. It may take a couple hours, a couple weeks, or even months, but sex is often a progression where the male pushes, and the female resists, until she doesn’t, and they go on to the next step.

This is not unique though to our species. While there may not be a lot of real rape, in other mammalian species, there is often a bit of pursuit by the males, even in species where the males earn their breeding rights by fighting other males.

It makes sense that the males have to pursue the females, and, esp. in our species. Males are expendable and replaceable, but, on the other hand, can theoretically (and have) fathered a thousand children. Females were lucky to hit a dozen, and that would take most of a decade being pregnant, and probably several decades being tied up with babies. And, then, likely as not, they would die in childbirth. So, what they offered was more important than what a male offered. And, compounding that, their value as a mate at least partially depended on their ability to convince males of their exclusivity, in order to guarantee paternity for the males, and that required that the females played hard to get, at least publicly.

So, the whole idea here seems to be to give females a chance to get revenge on males if they feel day-after remorse. For the most part, the females voluntarily put themselves in the position they found themselves in, with the full knowledge of what might, or maybe was likely to, happen. They got drunk, hooked up, and regretted it the next day. Maybe the guy didn’t call them back. Something like that. But, before thinking that the females can only win, keep in mind that males are more and more dropping out of the dating/mating game, and are getting harder to nail down into marriage, as the reality that the deck is stacked against them becomes obvious to more and more of them.

    Juba Doobai! in reply to Bruce Hayden. | March 10, 2014 at 11:45 am

    “Males … can theoretically (and have) fathered a thousand children. Females were lucky to hit a dozen”.

    This is called balancing the scales. We women can have multiple orgasms but you guys can’t.

    But a woman always knows that the child she gives birth to is her offspring. Men who have, theoretically, fathered thousands of children were probably competing with thousands of other men and have no real way of knowing which, if any, children are theirs. As far as reproductive success, up until paternity tests were available, only women knew with surety. (Which is why you find characters like the cuckolded king in Game of Thrones.) IMO, the mating/dating/marriage game exists for man’s benefit. Especially now that women can choose to end a pregnancy making it even more important for the man to have established a deep bond with them.

      Bruce Hayden in reply to gxm17. | March 10, 2014 at 2:54 pm

      Agreed that fear of lack of paternity underlies much of our morality – though I think that there is some evidence that this goes beyond mere morals, and into wiring, wiring that somewhat overrules the more ancient wiring or instincts of females mating with the males appearing to have the best genetics. The more recent programming for monogamy on the females part is presumably there so that they can obtain the (mostly) exclusive resources of a single male in the raising of their children.

      That said, the problem here is that there seem to be increasing pressure on males not to play the dating game, and, instead disconnect from such, partially in response to females playing around more (and having more sex with alpha, or fake alpha (i.e. PUA) males). Fewer guys have sex with more gals. But, compounding it though, are social, and now legal, norms that greatly advantage females in these sorts of relationships. Not just abortion completely under the control of the females, but also the ability to cry “rape” after what would traditionally have been typical male/female conduct leading up to sex.

” the Daily Californian advocated that sex be treated as “sexual assault” unless the participants discuss it “out loud” before sex, and “demonstrate they obtained verbal ‘affirmative consent’ before engaging in sexual activity.” ”

Will that require witnesses? Say like Islamic requirements for sexual (im)propriety?

Wow.. I would guilty of rape many times over if this were the law when I went to college. This applies to women as well, right?

What happened to the California of “Free Love”?

Who are all of these prudes, and what have they done with those free-spirited gals who were so eager to give it away to any skeevy dude who walked by, just to show Mummy and Daddy that their 50’s values were so square?

What’s next? Corsets and girdles? Petticoats and bustles? High-buttoned boots and parasols?

The mind boggles.

How is “affirmative consent” or lack thereof to be proven in a consensual rape case? Must student audio record every time they get some?

    That’s… exactly what I was thinking, actually.

    Some men have escaped conviction only because they filmed their intercourse on a smartphone to demonstrate the partner was willing. (Ew.)

Karen Sacandy | March 10, 2014 at 11:33 pm

Pretty sure they want to stigmatize natural heterosexual union between the successful middle class, so there will be less of them.

So much better if illegal aliens have children which we then pay to raise. If you don’t like the electorate, change it!

A whole new opportunity for Hallmark

ANNOUNCEMENT! ANNOUNCEMENT! ANNOUNCEMENT!

Mr. & Mrs. Jones are pleased to announce the sexual consent by their daughter to Franklin somebody(we’re not sure of his last name but probably a Kennedy or Clinton). You are invited to the consummation party on Mar 12, 2014 at 2:30 a.m. at the Bliss Motel, next door to the U of Tennessee dormitories – presuming they can make it across the parking lot beforehand.

BYOB and BYOP. A bed sheet raffle will be held afterwards. (Disclaimer: cannot assure sheets are stain and bed bug free). Proceeds to the UT Women’s Studies program.

The Twitter consent forms:

She: I, @toodrunktosayno, conshent to haf sex w (@fillinname)

He: I,@rambunctiousfool, consent to have sex with @Abbey, @Beth, @Carol,@Dorothy, @etceteraetcetera….

[…] Colleges are well on the way to becoming puritanical matriarchies. Already overwhelmingly female, new laws are being worked that will define virtually all sex as rape, and there are efforts underway to make it mandaory to expel males who are merely accused of rape. […]

    Yup. As far as that goes, I knew a gay kid who was accused of molesting a co-worker. Everyone in the building were going “Who?? What??????”

    Turned out she was a spoiled Princess who did not want to work, her parents twisted her arm and told her she had to or get her allowance cut and no college tuition assistance.

    Heck, her supervisor was ready to fire her, but that claim meant he could not and she had to stick around longer while the claim was investigated. (He was transferred, then exonerated.)

We are all aware that an oral contract is valid (barring contracts over a year in performance, surety, real estate, etc…)

But, why risk it when you can put it in writing?

http://www.sex-contract.com/

Feminist action on rape has never been about helping victims of rape… How exactly does it help anyone to assert that police won’t take rape accusations seriously… except the rapists themselves, those providing government funded services that need to justify their existence, and those pushing for more laws?

The reality is, the “rape culture” hysteria has always been about two things… money and power. Money in the form of government programs like VAWA funding, that fills up activist coffers under the guise of “helping” victims (but as we saw with VAWA funding of DV shelters, there is a lot of fraud which is unaccountable, since there is no accountability to how this funding is spent)… and power, in the constant demand for more laws, more protections for women, and more errosion of rights of men. The end result will be women putting men in prison at the point of a finger, without any accountability for their accusations… That, of course, will go alongside the justifiable homicide that feminists like Sheehy, from the University of Ottawa, has advocated for, where women can kill their husbands in their sleep, and an accusation of abuse will be sufficient to end the investigation and let her walk without any need to prove the claim (and her advocacy really is just codifying into law the precedent currently set in courts anyways)

Font Resize
Contrast Mode
Send this to a friend