SB 967: great law or greatest law?
This has been the full extent of the discourse tolerated on our campus about California’s new law mandating affirmative consent for college students during sex.
Here’s what we’re allowed to say on the matter, when we’re allowed to say anything at all: 1) Consent is sexy. 2) Consent is important. 3) SB 967 is the greatest law ever written and anyone who doesn’t feel a thrill of arousal at the thought of being required by law to get repeated affirmative “yeses” from their partner during sex is an ignorant rape apologist.
Here’s what I’ve always wondered: If SB 967 is such a good law, why not apply it to the entire state of California, not just college students? The answer is because if affirmative consent were made into actual criminal law, it would be immediately overturned by the courts for being blatantly unconstitutional. Affirmative consent laws are a clear violation of the rights to privacy and due process, and only college students could be gullible enough to believe that such a blatant intrusion of government into their private lives could possibly be a good thing.
Under an affirmative consent law, everyone is guilty except for monks, nuns and eunuchs. Think back to your own sexual experiences for a moment. Did you stop and ask for affirmative consent every single time? Probably not. Does that make you a rapist? No. It makes you a human.
Affirmative consent laws are a clear violation of the rights to privacy and due process, and only college students could be gullible enough to believe that such a blatant intrusion of government into their private lives could possibly be a good thing.
SB 967 says that the existence of a dating relationship between two persons cannot be assumed to be an indicator of consent. Applied to the general public, this would imply that married couples who have been together for decades and implicitly understand each other’s nonverbal cues are still expected to stop and ask for affirmative consent every single time they have sex. Do state Senators Hannah-Beth Jackson and Kevin de León, who co-sponsored the bill, get affirmative consent every time they have sex with their spouses? Does Governor Jerry Brown, who signed the bill into law? Probably not. So why do they feel entitled to impose such a high standard on impressionable college students?
The sex lives of these politicians aside, let’s take a closer look at some of the flaws of SB 967.
The law seems to imply that affirmative consent must be verbal: “Lack of protest or resistance does not mean consent, nor does silence mean consent.” But it makes absolutely no clarification whether this is the case, or whether nonverbal body language (an integral part of sexual communication) will suffice. The law says that affirmative consent must be “ongoing throughout a sexual activity.” But once again, it gives absolutely no clear framework for how often this ongoing consent must be given. How can such imprecise guidelines ever be practically applied to something as nuanced as human sexual behavior?
The law also mandates that California colleges use a “preponderance of the evidence” standard in adjudicating sexual assault cases. Preponderance of the evidence is a standard typically used in civil cases. Criminal cases traditionally use the much higher standard of “proof beyond a reasonable doubt.” Is it really appropriate to apply a standard meant for civil cases to one of the most heinous crimes imaginable?
Some people say that we should believe all allegations of rape, and perhaps we should … on an individual level. If your friend tells you they were raped, you should take them seriously and do what you can to help them. But we should not believe all allegation of rape in the legal system. Our justice system is based on due process and the presumption of innocence, and this necessitates disbelieving all allegations until evidence can be presented in a court of law.
This might seem harsh, but it is our only protection from a nightmarish system of witch trials and kangaroo courts. As Justice William Blackstone said 200 years ago, “It is better that 10 guilty persons escape than that one innocent person suffer.” When Blackstone’s formulation is abandoned, history has taught us that the most disenfranchised members of society are the first to suffer. Hundreds of black men in the Jim Crow South who were lynched based on false allegations of rape could testify to this. Is this really the sort of system we want to invite back into our universities? The text of SB 967 is easily available online. I encourage everyone to read it, and ask yourselves, “Could I reasonably live by the language of this law?” Most people couldn’t … and that is precisely the point of the law.
One of SB 967’s supporters —columnist Ezra Klein — celebrates the fact that the law “will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent,” and cause college men “to feel a cold spike of fear when they begin a sexual encounter.”
Klein also says that cases of men being convicted of sexual assault “for genuinely ambiguous situations” is “necessary for the law’s success.” He believes that such extreme measures are necessary to curb the alleged epidemic of rape on campus.
The text of SB 967 is easily available online. I encourage everyone to read it, and ask yourselves, “Could I reasonably live by the language of this law?”
This is disturbing to hear someone say, considering how hard so many people in our society work to spread empowering knowledge about sex and decrease the fears that young people often have around the subject. In UCSB’s perennially popular SOC152A: Sociology of Human Sexuality course, for instance, John and Janice Baldwin teach that fear is the greatest inhibitor of the sexual response cycle, and encourage students who have anxiety surrounding sex to overcome their anxieties.
If Ezra Klein has his way, then SB 967 and its “cold spike of fear” will create a whole new layer of sexual confusion and anxiety for an entire generation of students. The only difference will be that these students’ anxieties will be entirely rational and no amount of education will be able to dispel them. How can anyone in their right minds consider any of this to be a healthy and well-adjusted attitude toward sex among young adults?
Klein’s authoritarian “scare them straight” attitude is completely incompatible with liberal values of sexual freedom. His attitude would be more appropriate coming from an uptight Evangelical with major hang-ups about sex. Nor is Klein the only one to advocate shifting the burden of proof onto accused students. Many of our politicians have advocated the exact same thing.
UC President Janet Napolitano, when asked how SB 967 helps students, said, “It really, in a way, shifts the burden, so that the survivor isn’t the one always trying to explain what happened.”
When asked how innocent people are supposed to prove that they received verbal consent, Assemblymember Bonnie Lowenthal, one of the authors of SB 967, said, “Your guess is as good as mine.”
In a U.S. Senate hearing, Representative Jared Polis suggested that colleges use a standard even lower than preponderance of the evidence to overturn Blackstone’s formulation entirely, saying, “I mean, if there’s 10 people that have been accused and under a reasonable likelihood standard maybe one or two did it, seems better to get rid of all 10 people.”
Even Hannah-Beth Jackson and Kevin de León lament the fact that “With a high burden of proof, district attorneys are all too often unable to gather enough evidence to prosecute offenders.”
A law that violates individuals’ basic rights cannot possibly encourage a greater respect for them.
These politicians claim to have a great deal of compassion for students who have been sexually assaulted. Where is their respect for those same students’ basic rights to due process, let alone their respect for the Constitution they vowed to uphold? Ending sexual assault is an issue grounded in the protection of individuals’ basic rights. A law that violates individuals’ basic rights cannot possibly encourage a greater respect for them.
Ezra Klein and his ilk may believe that the only solution to “a world where women are afraid” is “to create a world where men are afraid.” But I reject this zero-sum worldview. Fear is not the answer. Violating students’ rights is not the answer. Overturning due process is not the answer. Criminalizing a broad range of normal human behavior is not the answer.
Klein and other affirmative consent advocates may be geared up to fight a gender war. What we actually need is a gender dialogue. Rather than trying to benefit one sex at the expense of another, we should be working to develop proactive solutions to the problem of campus rape that respect the rights of both men and women.
And, as the direct constituents of Senator Hannah-Beth Jackson, we should have no problem making it clear to her that if she does not care about our due process rights, then we do not care to re-elect her.