Why not apply the new affirmative consent standard off campus, to the legislators who passed the bill?
We’ve written previously about California’s proposed “affirmative consent” bill, which codifies — for lack of a more delicate terminology — what constitutes acceptable foreplay between consenting adults on college campuses.
On Sunday, that bill became law.
Via Fox News:
[Bill author Sen. Kevin] De Leon has said the legislation will begin a paradigm shift in how college campuses in California prevent and investigate sexual assaults. Rather than using the refrain “no means no,” the definition of consent under the bill requires “an affirmative, conscious and voluntary agreement to engage in sexual activity.”
“With one in five women on college campuses experiencing sexual assault, it is high time the conversation regarding sexual assault be shifted to one of prevention, justice, and healing,” de Leon said in lobbying Brown for his signature.
The legislation says silence or lack of resistance does not constitute consent. Under the bill, someone who is drunk, drugged, unconscious or asleep cannot grant consent.
The bill holds hostage funding for colleges and universities unless “the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking…”
That policy is strictly defined within the bill, and mandates new, uniform procedures for the reporting, counseling, and investigation of alleged sexual misconduct on campus.
The terminology used in the bill itself is vague to the point that it endangers the rights of the accused, and the dignity of the accuser.
Section 1 of the bill states that “the accused’s belief in affirmative consent” cannot have arisen “from the intoxication or recklessness of the accused.”
It also states that “it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances: (A) The complainant was asleep or unconscious; (B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.”
Coupled with the campus “kangaroo court” system currently in place at so many American universities — including California — this bill is a recipe for disaster.
Real talk: sex happens. Drunk, sloppy, reckless sex happens on college campuses and there’s not a bill in the world that can eliminate the oft-depressing reality of “the morning after.”
This bill not only assumes a drunk male is guilty of assault, but assumes a drunk female is incapable of consenting to sex, and does not define what it means to be “incapacitated.”
Now, by law, in a situation where a substantial amount of alcohol is involved, consent cannot exist, the aggressor is by default a rapist, and an even-willing partner is by default a victim.
Not surprisingly, throughout the entirety of the bill, there is not one provision dedicated to ensuring the preservation of the rights of the accused.
I don’t think there’s an honest lawyer or advocate alive who would argue that consent can exist when someone is drugged, or unconscious, or asleep; but to sign into a law a bill that is so one-sided as to assume the guilt of the accused is beyond the pale.DONATE
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