California considers law requiring public colleges to set consent standards for sex

by undisputedlegal

By: Debra Cassens Weiss

Lawmakers in California are considering a law that would require colleges receiving public funds to adopt an “affirmative consent standard” that would be used in investigating and punishing sexual assault allegations.

The bill, known as SB-967, passed the state senate in May. If it becomes law, it would become the first state law to require a consent standard, the Associated Press reports. The bill says consent requires “an affirmative, unambiguous and conscious decision” by each party to engage in sexual activity. Silence or lack of resistance doesn’t constitute consent, and a person who is drunk, drugged, unconscious or asleep would not be able to give consent, according to the standard. Consent must be ongoing, and “can be revoked at any time,” the bill says.

The legislation comes in the wake of a report released by the White House Task Force to Protect Students from Sexual Assault and multiple civil rights suits, alleging that colleges and universities are failing to properly investigate, report and punish sexual assaults. In May, the U.S. Department of Education released a list of 55 colleges and universities which were currently under investigation for the way they handle reports of sexual assaults. Four of the schools on that list were from California.

The Los Angeles Times expressed reservations about the proposal. “Many accusations of sexual assault arise because one party says the sex was consensual and the other says it was not. Surely, affirmative consent would help solve that problem,” the May 28 editorial said. But the editorial board was not sure that the legislature was correct in getting involved. “Yes, the new standard might help in the adjudication of sexual assault allegations, but its language still seems both vague—what exactly would constitute an unambiguous sign of consent?—and unnecessarily intrusive.”

George Washington University law professor John Banzhaf told AP that he was concerned about how university discipline panels would be able to evaluate evidence using these standards, and thinks it could lead to more lawsuits. In most state laws, he said, the definition of rape involves the perpetrator using force or the threat of force against the victim. Banzhaf said that the bill “would very, very radically change the definition of rape.”

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