September 17, 2014

THROWDOWN THURSDAY: Should California Redefine Campus Sexual Assault?

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When is a kiss considered to be sexual assault?

According to the U.S. Justice Department’s website, almost always. It defines sexual assault as any sexual contact that occurs without “explicit consent.” Under this definition, simply giving your sexual partner a spontaneous kiss constitutes a sex crime. Instead, you should always ask, “May I kiss you?” and receive a clear “yes” before proceeding.

Currently, nothing resembling this extreme definition of sexual assault is actually in place in any legal jurisdiction in the United States. But that may be about to change.

The California legislature recently considered a bill that would have effectively required explicit verbal consent to all occurrences of sex on campus. After complaints that the measure would have criminalized most instances of campus sex and classified most sexually active students as rapists, the policy was adjusted to simply require “affirmative, conscious and voluntary agreement” (or the “yes means yes” standard) to all sexual contact between students on campus. The revised legislation now awaits Governor Brown’s signature.

Supporters of the new standards are confident that this policy change will do more than grant students additional protection against sexual violence. Apparently, it also has the potential to improve your sex life.

According to Tara Culp-Ressler of the Center for American Progress, the new standard will ensure that your sexual partner is not just willing, but enthusiastic about sex. This would create better communication between partners, enabling them to better understand and meet each others’ sexual needs. For Culp-Ressler, the new standard is about “broadly reorienting how we approach sex in the first place.” Speaking along the same lines, California State Senator Kevin de Leon remarked that the legislation will enable young men to“develop healthy patterns and boundaries as they age with the opposite sex.”

My view is different: I do not want the government reshaping how students approach sex. Frankly, it is not the government’s role to intrude into students’ private lives to that extent. Worse still, the California state lawmakers responsible for this bill have no intention of applying these standards to their own off-campus sex lives. In this regard, they display a truly stunning level of paternalism: Fully-grown students on campus are supposed to follow special rules concerning sex, but the wider society is exempt from these same standards. If these new rules are so crucial for protecting people from sexual violence, why not apply them statewide?

In this whole conversation, the most important question to ask is if anyone made safer by these new standards. Supporters hope that the law will gradually change the public’s perceptions about what it means to consent to sex, thus making students safer by improving the campus culture.

Yet, despite the good intentions of the law’s supporters, this legislation serves only to muddle the line between consensual sexual behavior and sexual assault because it fails to specify what is needed to establish affirmative consent.  It is crucial that the distinction between consensual sex and sexual assault remain clear in our laws.

Given that failure to receive affirmative (or enthusiastic) consent before a sexual encounter on campus may become a crime, an important question needs to be asked: In a university disciplinary proceeding, how does one prove that “affirmative consent” was given?

This question is particularly salient given the growing trend of stripping those accused of sexual offenses on campus of basic due process rights, such as the right to retain an attorney during university judicial proceedings and the right to confront one’s accuser. Even if affirmative consent was given in a particular case of alleged sexual violence, the impossibility of proving it days afterward (in the absence of a notarized statement or a videotape) makes people vulnerable to inaccurate accusations. Think about it: If someone alleged that he or she did not give affirmative consent to a sexual encounter with you, would you be able to disprove the allegation?

This debate has shifted quickly over the course of just a few decades.  It used to be about making it clear that when it comes to sex, “no means no.”  We created this standard to establish that each individual possesses the absolute right to say “no” to sex.  Everyone should know that if they exercise that right, and their will is ignored, the law will step in to protect them and punish the offender.

Now, some activists say that a failure to subscribe to the “yes means yes” standard proves that one is uncaring about sexual violence and uninterested in tackling the problem. When disagreement descends into personal attacks of that nature, having an honest and open conversation on an issue becomes nearly impossible. Dissent from the prevailing view serves as automatic proof of malevolent intentions.

In my view, our laws must maintain a clear legal line between consensual sex and sexual assault. Student safety is not advanced through vague statutory language that erases that line. Most of us should be able to distinguish between a forcible sexual encounter and consensual sex that occurs without affirmative consent. Shouldn’t our law be able to do the same?

Julius Kairey is a senior in the College of Arts and Sciences. He may be reached at [email protected]. Always Right appears alternate Thursdays this semester.