California is on the brink of enacting a new law which would require all colleges receiving money from the state to operate on an only “yes means yes” standard when evaluating claims of sexual assault.
The bill was passed by the state’s General Assembly by a decisive 52-16 vote. It previously passed the Senate in May, but will have to be re-approved due to a handful of amendments made to the bill. If it is once again approved, which is expected, it will go to the desk of Gov. Jerry Brown.
The so-called “affirmative consent” standard would declare that an individual must obtain unambiguous affirmative consent prior to sexual relations, or else they will be subject to school . The bill also would declare that consent cannot be given when a person is drunk.
The standard is quite different from that used in criminal law, where rape and sexual assault occur in situations where consent is explicitly refused or when it is impossible to provide (such as when a person has lost consciousness).
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Also, criminal law allows a person to consent to sex while intoxicated, as long as they are aware of what is happening. In addition to mandating a particular definition of sexual assault, the law also requires that colleges adjust their policies to have more comprehensive assault-prevention measures and to have “victim-centered” protocols for responding to assault claims.
The legislation has been championed by anti-sexual assault groups such as the California Coalition Against Sexual Assault (CALCASA), who argue the law will empower victims and make it more difficult for predators to brush off assault accusations as the product of alcohol-fueled misunderstandings.
However, Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education (FIRE), said the law’s advance is a worrisome development that forces colleges to create tribunals biased against the accused.
“This bill will do very little to protect people from sexual assault, but will make it almost impossible for students accused of sexual assault to get a fair shake” Cohn told The Daily Caller News Foundation. “The bill isn’t really going to affect how people actually have sex. It’s going to really only come into play during campus tribunals. It requires people accused of sexual assault to prove their innocence.”
Cohn said he would be “shocked” if the bill did not swiftly result in a court challenge by a student arguing they were wrongfully expelled.
Cohn added that the bill was motivated by a desire to make campus tribunals a friendlier place for victims to turn for relief. However, he said that shouldn’t come at the expense of the accused, and added that if campus tribunals become the preferred way for students to seek justice it could actually enable more sexual assault.
“The worst a school can do is expel someone,” he told TheDCNF. “They can’t put someone behind bars.” Since research indicates that most rapists are repeat offenders, reliance on campus tribunals could allow genuinely dangerous individuals to go free without the police involvement needed to stop them.
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