No means no, silence means no and the absence of a continuing yes means no, too: That’s the upshot of a controversial new California law governing disciplinary proceedings at colleges that receive state funding.
Under the law, a student who has been accused of sexual assault can’t defend himself by saying he thought the accuser was a willing partner. There has to have been “affirmative, conscious and voluntary agreement to engage in sexual activity.” Consent, so defined, must be “ongoing throughout sexual activity.”
The law also lowers the standard of proof for disciplining the accused. There need not be “clear and convincing evidence” that he did something the new standards prohibit; a “preponderance of evidence” will do. The law doesn’t define “sexual activity,” but some colleges have been known to interpret it inclusively: The University of Alabama at Birmingham counts “kissing.” Nor does the law specify how often verbal consent must be renewed.
Would a college really expel a student for not getting an explicit verbal “yes” before kissing someone? Maybe not. Administrators might think that would be overkill or not want the bad publicity or lawsuits that would follow. On the other hand, they might not want to deal with the consequences of letting someone they’ve labeled a perpetrator of sexual assault stay on campus, either.
One defense of the law is that it doesn’t seek to micromanage sexual activity on campus, since it applies only to cases where assault is alleged. But that’s hardly a defense at all, since it could apply to a range of overbroad laws. A vague statute that appears to criminalize some ordinary activity won’t be applied against everyone who does it; it will come into force only when authorities bring a case, a complaint is filed and so on. What the critics of the California law are worried about is the possibility that regrets or misunderstandings will lead to such allegations.
The law seeks to reduce one sort of injustice — the kind that happens when a victim of assault has to keep going to classes with her assailant. But supporters seem utterly dismissive of the idea that another type of injustice — the false or misguided accusation that results in a student’s expulsion — matters at all.
The effect of the law may be to shift the burden of proof to the accused. In June, a reporter asked one of the bill’s authors how someone would prove that he had gotten affirmative consent. Her response: “Your guess is as good as mine. I think it’s a legal issue. Like any legal issue, that goes to court.”
If you find that explanation reassuring, you’ll probably like this law.
Ramesh Ponnuru writes for Bloomberg News.