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California Bill Brings Government Into the Bedroom

By Cathy Young - June 9, 2014

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The feminism of “affirmative consent” is equally dubious. Indeed, this standard arguably strips women of agency in a way that traditional sexual norms never did. In the traditional script, the man initiates while the woman decides where (or whether) to set the limits. Under explicit consent rules, the person taking the lead must also assume much of the responsibility for setting the limits by making sure his partner wants to proceed—while the more passive party cannot be responsible even for making her wishes known without being asked.

While these rules are technically gender-neutral, the general assumption in campus activism is that the victim of nonconsensual heterosexual sex is female. Indeed, if there was a sudden rush of male students filing such charges against women who had failed to “ask first,” it’s likely that the activists would respond the same way battered women’s advocates did in the 1990s when their push for mandatory arrest in domestic violence cases led to more arrests of women: by crying backlash and claiming that male abusers are manipulating the system to punish their female victims.

Until now, “affirmative consent” policies have been voluntarily adopted by colleges (though within a context of federal law that requires schools to protect students from broadly defined sexual violence). The California bill with its government mandate represents an alarming new phase in this campaign, as well as another step toward a de facto presumption of guilt in campus sexual misconduct cases. It effectively shifts the burden of proof to the accused while also requiring colleges to use the lowest possible threshold—“preponderance of the evidence”—in assessing the validity of a complaint. In practice, this means that any minimally plausible charge is likely to be upheld.

One would think that the California legislators would have some second thoughts about endorsing a bill that essentially redefines some 95 percent of human sexual encounters as rape (including married sex, since the bill specifically states that a prior relationship creates no presumption of consent). Even the Los Angeles Times, usually strongly supportive of the anti-campus rape campaign, criticized SB-967 in an editorial noting that “it seems extremely difficult and extraordinarily intrusive to micromanage sex so closely.”

At a March 20 hearing before the Senate Education Committee, Denver-based attorney and school safety advocate Ann Mitchell, a Stanford Law School graduate who has practiced in California for most of her career, testified in opposition to the bill as currently formulated, warning that its “vague, ambiguous, and overbroad” language “exposes students—not just men, but women as well—to misguided, and even specious charges.”

In the discussion that followed, a few lawmakers, such as Republican state senator Bob Huff, voiced cautious misgivings. The comments from Sen. Lori Hancock, Democrat from Berkeley (found at 1:09 in the video of the hearing), provide a rather stark demonstration of both the ideological zealotry and the moral intimidation underlying this bill. While Sen. Hancock at first claimed to appreciate the complexities raised by Sen. Huff, this turned out to be pure sarcasm. “It’s probably hard to be a guy when you think you’re just doing what guys, culturally, are allowed to do—push a woman around a little bit, whatever,” Sen. Hancock remarked with a snide chuckle. “I think what we’re talking about here is a profound cultural shift which needs to happen.”

Most of the other committee members limited themselves to platitudes about the courage of survivors and the importance of preventing sexual assault, without addressing the bill’s radical nature. In his own concluding comments, Sen. De Leon seemed to suggest that “affirmative consent” meant simply that the lack of a “no” could not be a defense to a sexual assault on an unconscious woman—which is, of course, already part of the definition of rape in the courts and not just on college campuses.

In subsequent amendments, some of SB-967’s more extreme sex-policing language—including the warning against relying on nonverbal communication and the admonishment to stop for a safety check if any ambiguity seems to arise—was removed. But in its current form, the bill still brings the government into the bedroom in a far more drastic and coercive way than abortion regulations. And the Assembly is unlikely to put the brakes on it: who wants to be seen as defending a man’s right to push a woman around?

Where this is going next is anyone’s guess. Perhaps there will be a push to bring similar reforms to criminal law: after all, why should sexual assault on college campuses be defined differently than in the real world? Or perhaps the activists will decide that “yes means yes” is not enough, either. In fact, that’s happening already. A list of clarifications about consent on some campus posters stipulates that “if they don’t feel free to say ‘no,’ it’s not consent” (meaning that at least in theory even explicit verbal agreement can be invalidated). And a new campus campaign in Canada warns that “if it’s not loud and clear, it’s not consent—it’s sexual assault,” using posters with the words “fine,” “okay,” and “sure” in tiny print to make the point that consent expressed in a “muted” or “uncertain” doesn’t count. Perhaps they can tell us the proper decibel level for a “Yes.”

Or perhaps we can come to our collective senses, stop the moral panic, and realize that someone is indeed pushing us around. And, in this instance, it isn’t male Republicans. 

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Cathy Young writes a weekly column for RealClearPolitics and is also a contributing editor at Reason magazine. She blogs at http://cathyyoung.wordpress.com/ and you can follow her on Twitter at @CathyYoung63. She can be reached by email at CathyYoung63@gmail.com.

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