Consent Policy in California

Intimate activity will be withheld until the consent forms have been signed in triplicate, sent in, sent back, queried, lost, found, subjected to public inquiry, lost again, and finally buried in soft peat for three months and recycled as firelighters.

On September 28, California’s Governor Jerry Brown gave his assent to a bill that proposed to require (on threat of withheld funding) all of the Golden State’s universities to craft “policies concerning sexual assault, domestic violence, dating violence, and stalking that include certain elements, including an affirmative consent standard in the determination of whether consent was given by a complainant [emphasis added].” Similar to college policies established across the nation, the bill stipulates that “affirmative consent” must be “ongoing throughout a sexual activity” and “can be revoked at any time,” with both parties unimpaired by drugs or alcohol.

While supporters of the idea of affirmative consent clearly are attempting to alleviate the vicissitudes of post sexual-revolution college nightlife, such a legalistic construct does not help eradicate the problem of sexual assault. It is, however, a highly publicized silver bullet to a highly publicized bugaboo. The premise of “Yes Means Yes” is that most campus sexual assault results from the maelstrom of young adults’ misunderstandings of social skills which can be magically repaired through asking, “Is this okay?” on every step on the road to intimacy (we at the Review hear on the grapevine that you can pick up notarized consent forms in triplicate from Parkhurst starting next term). However, as libertarian magazine Reason notes, “the vast majority of campus rapes are committed by a small minority of repeat offenders who give not a damn about what the woman wants. And if they can threaten violence, they can also lie about obtaining consent. So how will the law change anything?”

The law would, of course, simply end up adding layers of red tape to the Byzantine world of ivy-covered halls. In fact, one of those layers would make things much worse. One of the bill’s mandates calls for colleges’ judiciary processes to adopt a “preponderance of the evidence” threshold for administrative punishments for sexual assault, where a slight majority of evidence towards guilt opposing evidence against it would lead to a verdict of “guilty.”  This would fall short of the “beyond a reasonable doubt” level of evidence required in a court of law and held as a cornerstone of the American legal system.  We at the Review cannot endorse the California bill (even with its best of intentions) and would encourage Parkhurst to withhold consent from its unwieldy framework.