The Los Angeles Daily News reports that in August, the California State Assembly will consider legislation requiring colleges whose student financial assistance is publicly funded to obey an “affirmative consent standard” designed to investigate and then punish those guilty of sexual assault.
According to the legislation, for sex to be legal on campuses, there would have to be “an affirmative, unambiguous and conscious decision” by each party. The bill passed the State Senate 24-7.
Consent could not be derived from silence or lack of resistance. If the victim is drunk, drugged, unconscious, or asleep, no consent can be assumed to have been given. The legislators assert that consent can be nonverbal.
The move for defining consent and protecting students from sexual assault was triggered around the country by a report from a White House task force that 1 in 5 female college students has been victimized by a sexual assault. The U.S. Education Department joined in the effort, publicizing the names of schools under federal investigation for their laxity in challenging sexual abuse.
After the bill passed the Senate, the Los Angeles Times asserted that the bill might not be “reasonable” or “enforceable… It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms.”
Another dissenter was said Ada Meloy, general counsel of the American Council on Education, which looks out for college presidents, who said, “Frequently these cases involve two individuals, both of whom maybe were under the influence of alcohol or drugs, and it can be very tricky to ascertain whether consent was obtained.”
John F. Banzhaf III, a George Washington University Law School professor, said the bill is problematic, adding, “This bill would very, very radically change the definition of rape.”
The legislation was changed from its initial incarnation, in which it said, “if there is confusion as to whether a person has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion can be clearly resolved.” Criticism leveled at that version focused on the possibility that it was implying people would have to stop after each kiss to obtain permission to move farther along. The criticism prompted a change where consent had to be “ongoing” and “can be revoked at any time.”
State Sen. Kevin de Leon, a Los Angeles Democrat, said, “California needs to provide our students with education, resources, consistent policies and justice so that the system is not stacked against survivors.”