On September 28. 2014, California Governor Jerry Brown signed into law SB 967. This bill, introduced in February, is a response to the thousands of allegations of campus rape and the subsequent miscarriages of justice by incompetent college tribunals by addressing the difficulty in prosecuting sexual assault.
SB 967 will require the university and college students of California to obtain verifiable “affirmative consent” before and during sexual activity – that being the affirmative, conscious, and voluntary agreement to engage in sex. Silence – the absence of a “no” – is not recognized as consent under the bill, no matter how involved or sexually excited the partner may be.
The bill also relaxes the standards of evidence required to convict alleged rapists in college tribunals: rather than being presumed innocent until found guilty, they will now be tried on a “preponderance of the evidence”. This standard is similar to that of the “balance of probabilities” used in civil law. If a court determines that a person has a 51% chance of having committed sexual assault, they will be found guilty. The standard of proof required for all other criminal evidences is “beyond a reasonable doubt.” Establishing such a double standard in criminal law – even if only in university tribunals – is a travesty.
Furthermore, the burden of proof will be shifted onto the accused. The accused must now prove that their partner consented, rather than their accuser having to prove that they did not consent. Both are difficult endeavours in the absence of witnesses or physical evidence. But “guilty until proved innocent” is not how the law is supposed to work. The law’s obligation to protect innocents outweighs the law’s obligation to punish the guilty.
Assemblywoman and bill co-author Bonnie Lowenthal, when asked how a student could demonstrate that they received affirmative consent, replied “Your guess is as good as mine.” Well, I’ve got the answer for you. In addition to a notarized document signed in triplicate by you, your intended, and two witnesses, any participants in the act must continually and clearly answer to the affirmative while being filmed on camera, just in case someone is later accused of rape.
This ham-handed perversion of justice is well-intended, but unwelcome. It is difficult to provide evidence in sexual assault cases: having the word of one participant against another, in what is likely to be a private or isolated area, with no recording. Victims may also delay in obtaining physical evidence, such as the results of a medical examination, due to the stigma against both males and females who have been subjected to sexual assault. However, tipping the tables just so that the accused can be convicted more easily is completely wrong. No other crime subjects the accused to prove their own innocence. No other crime convicts on a balance of probabilities.
Why would California even want to allow universities and colleges to make rulings on sexual assault? Their punishments are limited to sanctions like warnings, suspensions, and expulsion, and campus tribunals are only qualified to make rulings on human rights violations, workplace hazards, academic integrity, and other university policies, WHIMIS, sensitivity training, Policy 71, and rape: one of these is not like the other.
Campus tribunals should not be allowed to play judge, jury, and executioner on serious crimes like assault, murder, and rape. The Assembly is wrong in giving unqualified tribunals the tools to more easily ruin the lives of innocents. This is like giving a toddler a horse because he can’t climb the stairs on his own. The toddler shouldn’t be on the stairs in the first place.
Instead, university and college staff should provide resources and guidance to assist both accused and accuser in a timely and compassionate manner. Unfortunately, victims of sexual assault are often reluctant to go to the police, due to the insensitive way that officers often treat victims. This in turn stems from our own cultural biases: the belief that men can’t be raped, and that women are asking for it.
The California assembly cannot change the social prejudices of a state with a bill, but sometimes, clumsy legislation is the only tool that we can work with. When the Supreme Court inevitably strikes down SB 967, the Assembly should aim not to change the law regarding what constitutes consent: they should develop guidelines for police officers to treat victims of sexual assault more compassionately and without prejudice. Maybe they’ll pass such a legislation when Crumpled-Horned Snorkacks fly.
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