A Deceptive California Bill on Campus Rape

In a recent string of tweets, Lindsay Rosenthal, formerly of the Center for American Progress and now at the Ms. Foundation for Women, compared concerns about insufficient due process protections on college campuses to the heavily partisan efforts to impose increased voter restrictions or to level fact-free allegations of “anchor babies”–a comparison, she added, that only those embedded in “privilege” could fail to recognize. When I pointed out to her that–quite unlike “anchor babies”–a wave of federal lawsuits had been filed alleging violation of due process, including from plaintiffs whose background in no way indicated privilege, Rosenthal announced that she would “no longer consent” to continuing the conversation.

Rosenthal’s arguments might have been dismissed as the rant of a thin-skinned extremist–but for a newly-introduced bill in the California state assembly. Introduced by Democratic senators Kevin de Leόn and Hannah-Beth Jackson and Democratic assemblywoman Bonnie Lowenthal, and co-sponsored by Democratic senators Jim Beall, Noreen Evans, Cathleen Galgiani, Fran Pavley and Norma Torres; and Democratic Assembly members Lorena Gonzalez and Das Williams. The measure, called SB 967, seeks to mandate a vision of due process even more hostile than the OCR’s “Dear Colleague” letter by linking due process matters to uncontroversial proposals that virtually colleges already have adopted in one form or another.

It’s these, uncontroversial, elements that led Fresno Bee to hail SB 967 on the grounds that it would force colleges to “put rape victims first.” It contains such provisions as requiring campus governing boards to cooperate with “on-campus and community-based organizations to make services available to [alleged] victims.” It holds that consent can never occur when an accuser is asleep or mentally or physically incapacitated. (Does any jurisdiction, anywhere in the country, hold otherwise?) The bill even contains one unequivocally positive element, requiring California’s public colleges to develop a protocol for “medical forensic examinations and coordination with the forensic examiner.” Few, if any, colleges even mention an expectation that an accuser receive a medical examination as part of her case.

Yet whatever benefit might come from the medical examination provision is more than overcome by SB 967’s hostility to due process. The measure seeks to codify as California law the terms of the OCR’s “Dear Colleague” letter, requiring all California public colleges to use the preponderance-of-evidence threshold in branding a student a rapist. (Imagine the outcry from many traditionally Democratic constituencies if these same legislators proposed an across-the-board reduction in the standard of guilt to 50.01 percent.) Following the Yale pattern, SB 967 also seeks to order all California public colleges and universities to establish procedures “procedures for anonymous reporting of sexual assault”–seemingly making sexual assault the only violent crime that California permits the accuser to have the shield of anonymity.

Finally, SB 967 goes to great lengths to establish what the bill’s authors term “an affirmative consent standard” to adjudicate all campus allegations of sexual assault. They define the term as follows: “a freely and affirmatively communicated willingness to participate in particular sexual activity or behavior, expressed either by words or clear, unambiguous actions.” A few lines later in the bill, however, the bill’s authors qualify the “actions” section, noting that “relying solely on nonverbal communication can lead to misunderstanding.” SB also holds that “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.”

How, precisely, must colleges adjudicate this standard?  Occidental professor Caroline Heldman (one of the activists backing the Title IX complaint claiming that Occidental’s policy, where “yes” might still mean “no,” is unlawfully anti-accuser), hopes that if the legislature passes the law, male students can be deemed rapists unless both parties “enthusiastically agree[d] to” intercourse. (Imagine how Occidental disciplinary panels will determine degrees of enthusiasm.) The bill doesn’t go that far, but according to SB 967, colleges must brand a student a rapist if he “did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.” The bill’s authors do not explain what these “reasonable steps” are, but if the bill passes, a prudent student would obtain either written or recorded consent before initiating any sexual activity. Otherwise, how could he provide evidence to meet the “affirmative consent” standard?

To reiterate: the legislators seek to confer upon these provisions the force of law.

Given what appears to be strong Democratic support for SB 967, perhaps Rosenthal is right that hostility to campus due process is now a default Democratic position. As a (quite partisan) Democrat, such a transformation in the party’s approach to civil liberties would horrify me.