Posted on 06/17/2014 6:49:15 AM PDT by SeekAndFind
California politicians are aiming to entrench and expand an Obama-administration policy that has questionable implications for the rights of the accused.
Senate Bill 967 would require California universities whose students are receiving financial assistance to change their sexual-misconduct policies. Colleges would be required to follow a standard of “affirmative consent” from students engaging in sexual activities and follow a “preponderance of evidence” standard for disciplinary measures.
The bill, co-sponsored by California state senators Kevin De León (D., Los Angeles) and Hannah-Beth Jackson (D., Santa Barbara), is in part a reaction to the newly established White House Task Force to Protect Students from Sexual Assault, which encourages universities to take action against sexual misconduct. The bill passed the California senate by a resounding 27-to-4 vote May 29. It will be heard by the assembly judiciary committee Tuesday.
Supporters claim that its measures are needed to “flip” a status quo that makes it too difficult for victims to come forward, but critics allege that two provisions undermine the rights of the accused.
The preponderance standard essentially means that California universities will be forbidden to give accused students the benefit of the doubt that is accorded in criminal court proceedings. The standard is not only broader than the “beyond reasonable doubt” standard applied in criminal courts but also broader than the middle-bar standard of “clear and convincing evidence.” SB 967 would require schools to take disciplinary action against all students deemed more likely to have committed a sexual offense than not.
Claire Conlon, a press and legislative aide to De León, said that the preponderance standard is widely used in civil courts. Moreover, the preponderance standard is already in effect mandated nationwide by an April 4, 2011, “Dear colleagues” letter issued by the Department of Education Office for Civil Rights, which said any higher standard is inconsistent with Title IX of the Education Amendments of 1972.
Joseph Cohn, the legislative and policy director of Foundation for Individual Rights in Education (FIRE), noted that upon the dissemination of this letter, many universities lowered their standards from the intermediate “clear and convincing” standard to preponderance in order to avoid lawsuits for failing to comply with Title IX. “Preponderance” is now nearly ubiquitous.
The mandate for preponderance in SB 967 is significant because it makes the change a matter of state law, rather than compliance with the Department of Education’s interpretation of Title IX, Cohn said. As things now stand, the federal mandate for preponderance would disappear if a subsequent administration’s Department of Education interpreted Title IX differently. Universities can in principle challenge the current interpretation of Title IX in court, though the stakes are so high that none are likely to do so. If ratified, SB 967 would give the preponderance mandate an independent and a more permanent legal foundation.
Cohn, a critic of SB 967, said the law “further retrenches a bad outcome and bad policy.”
The analogy between civil courts and university disciplinary action, often invoked by supporters, is questionable. It is uniquely damaging to carry the stigma of being declared a rapist. Institutions of higher education should not be able to punish a student as a sexual pariah on the basis of a mere 55 percent confidence in that student’s guilt. Moreover, as a February 13 FIRE statement criticizing an earlier draft of SB 967 noted, university students facing disciplinary action do not have the ability to settle out of court, nor are they guaranteed due process.
The bill’s “affirmative consent” provision gives rise to similar concerns. SB 967 mandates “an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.” The burden is on the initiator to ensure that he or she has consent – so understood – and misunderstanding is ruled out as an acceptable excuse.
“I think the ‘affirmative consent’ standard is particularly problematic because it’s so hard to prove,” Cohn said. He added that the SB 967 “almost ensures that there will be a greater number of students expelled or punished with serious questions as to whether or not that’s fair.”
Proponents of SB 967 emphasize that “affirmative consent” provision is that it will make it easier for victims to come forward with complaints, since investigations will place less significance on the absence of a verbal “no.”
“Instead of trying to figure out ‘did they say no?’ it asks ‘did they consent?’” Conlon said. “It takes the status quo and flips it. The status quo is obviously nor working. It seems stacked against survivors.”
In a similar vein, De León’s press release about SB 967’s passage in the senate described the bill as “changing the equation” so that “only ‘yes’ means ‘yes.’”
These quotes by supporters give the impression that the bill replaces an antiquated, overly permissive conception of “consent” with a carefully calibrated higher standard. An earlier version of the bill literally required a verbal “yes,” but that provision was dropped. Without that provision, it’s not clear that “affirmative consent” amounts to more than a redundancy. Tellingly, neither Cohn nor Conlon could provide an example of a sexual encounter that would be permitted before, but not after, acceptance of “affirmative consent” as the standard for sexual consent.
Despite the nebulous language, both supporters and opponents of SB 967 expect that “affirmative consent” provision will lead to more allegations of sexual misconduct at California universities if the bill is ratified. The absence of due-process protections for the accused on campuses make that a troubling development.
— Spencer Case is a philosophy graduate student at the University of Colorado. He is a U.S. Army veteran of Iraq and Afghanistan and an Egypt Fulbright alumnus.
how about this for a solution
guys, keep it in your pants
Well no. This is a bad idea. Not because I don’t agree that women are frequently threatened, both overtly and subtlety, to not report rape. But it would raise way too many legal problems in prosecuting these cases.
But here is what I don’t understand. I Prosecuted many rape cases. What’s the problem with the police and Prosecutor’s offices here? Can they not aggressively pursue these disgusting criminals? Heaven knows we were all over these cases, had an almost perfect conviction rate and always obtained significant jail time.
Don’t have sex if you are not married… problem solved.
Exactly.
Women are created/wired to desire this context for the sexual act, but leftist’s destruction of our social systems has pressured them into the “hookup” culture.
This gives them the “conscience out” of succumbing to the zeitgeist social pressure, then assuaging their conscience later by declaring that they didn’t consent.
Amen I say, sex is for marriage, abortion is murder
“Survivor”
Another once-powerful word, rendered meaningless for having been coopted by radical feminist elites as a hollow badge awarded to anyone who subjugates herself to their politics of victimhood.
“guys, keep it in your pants”
You can be accused of “rape” even if you do. Especially if you have money/power.
She doesn’t even have to recall details and can simply say “I was drunk and forgot everything”.
If you have anything to lose, simply being in contact with an unknown woman is dangerous these days.
Ya, quit seducing our young girls.
You know it’s never their idea...the guys just won’t stop....
and sadly, the /s is necessary....
There's no problem, actually. What's happening in the majority of cases is that the local police and DA investigate and find no grounds for prosecution.
The problem, though, is that in such cases, the university often will not reverse its disciplinary action. So... on the basis of an accusation that does not meet any legal standard, the student is expelled and becomes essentially blacklisted... no other college will accept him as a student, because he's been accused of rape.
The core reason for this Liberal Law is the same for all such laws - it allows for arbitrary increase of government power.
Beware the soi dissant “Do Gooder”. As Edmund Burke said, “Those loudest for the public good, have it least at heart.”
One man's testimony regarding campus "justice" when a woman accuses a man: What I Learned at Dartmouth, where he was suspended for a year even AFTER proving the woman was lying. And this was back in 1991.
Campus administrations will throw men (especially non-minority men) under the bus rather than even remotely risk trouble with campus feminist groups.
Read the link at my post #12. The guy was accused of rape even though he DID keep it in his pants, because the woman was upset over being rejected.
Did you go with cases where you had no evidence that a crime occurred, beyond just the woman's accusation? Or cases where the woman's story didn't check out?
Or where the only cases that made it as far as your desk, the ones where the police were sure a crime had been committed, and there was enough evidence for a reasonable chance of successful prosecution?
Case in point, the Duke Lacrosse case from a few years back.
Sincere question - why does the university have to be involved? If raped, report to the local police. If convicted, the school can suspend you.
Plus a “Rape Free Zone” - signs posted in areas where women can run to if they’re threatened with a possible sexual assault.
“Sincere question - why does the university have to be involved? If raped, report to the local police. If convicted, the school can suspend you.”
Students of large Universities can face investigations/sanctions from the school if convicted (or even accused) of a crime. Sometimes even after they graduate.
Why? It’s a holdover from the days when schools cared about the perceived character of their student body. College degrees were a big part of you back then and they didn’t want any undesirables associated with their school.
“What’s the problem with the police and Prosecutor’s offices here?”
They are far too likely to be skeptical and detect a false accusation, instead of rushing to punish whatever man the woman is accusing.
Like a liberal, do you think that suddenly human biology changed?
Liberals said that about females in the intimacy of the military, their wisdom was, just tell the 19 year old men that they can’t have sex with the teen girls living with them, problem solved.
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