To combat sexual assault against college women, California Senator Kevin de Leon introduced a bill, SB 967, conditioning state funding to colleges and universities that institute disciplinary action on students who fail to obtain verbal or written consent before engaging in any sexual activity. The bill further provides that consent excludes a lack of protest, resistance, or silence. Anything short of “yes” to each sexual activity could result in disciplinary action by the college or university.
While well intended, several problems exist with this bill. First, the policy places the burden on the accused to prove he or she received an affirmative, unambiguous, conscious, and mutually agreed upon decision to engage in a sexual activity. Lots of adjectives required to eliminate any doubt that yes meant yes. Unlike prosecutions by the state where the accused is presumed innocent, a hearing by the university begins with the presumption of guilt. If the accused cannot show he or she received a definitive yes, then the policy was violated. The obvious advantage to this burden shift is the accuser is not on trial to prove he or she was forced to engage in sexual activity. Additionally, the accuser is immediately considered the victim until proven otherwise. The disadvantage, however, is that punishment, which may include expulsion, is based on failure to prove innocence rather than proof of guilt.
Another problem is that sexual activity is not defined. It could be as broad as any form of fondling, or limited to intercourse and oral sex. Since the policy requires consent for each sexual activity, every move must proceed from a discussion that solidifies the affirmative, unambiguous, conscious, and mutually agreed upon consent. Although one may use the Dave Chappelle skit and always have a standard contract on hand covering all forms of intimacy and signed right as the mood has been set. Sometimes humor should reflect reality.
The biggest problem with SB 967 is the state, through the school, is meddling in relationships. It’s one thing to prohibit an individual from forcing another to engage in sexual conduct, it’s another to classify or dictate to a couple what is consensual sexual activity. As the U.S. Supreme Court held in Lawrence v. Texas, individuals have the right to engage in private conduct without government intervention. By dictating their private conduct, requiring the accused to prove he or she satisfied school’s requirement of informed, voluntary, and ongoing consent, and imposing disciplinary action if the private conduct did not meet the school’s standard of affirmative, unambiguous, conscious, and mutually agreed upon sexual activity; the government is potentially violating an individual’s due process. A campus of educated and empowered students that avoid activities that may compromise their judgment, affirmatively and emphatically say no to unwanted conduct, and immediately report abusive behavior will better reduce sexual assaults than presuming every reported assault is true.