While well intentioned, law's negatives outweigh its positives
Earlier this week, California’s governor signed into law the “yes means yes” bill. The bill mandates that colleges and universities receiving funding from the California state legislature to set an "affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. 'Affirmative consent' means affirmative, conscious and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity… [T]he standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence."
While I absolutely agree that campus rape is a major issue across the country, this legislation (and any future legislation proposed here in South Carolina) goes too far in trampling the rights of students to try and combat them.
When did USC (that’s the University of Southern California) become a court of law? Schools set up honor boards — or whatever they want to call their equivalents — to allow students accused of plagiarism or other forms of cheating to have a forum to defend themselves against the charges.
These bodies are often composed of resume-building students and overzealous faculty and rarely have any legitimate legal training. They were never intended to handle anything of greater seriousness than copying a friend’s term paper and are not equipped to do so.
This brings me to the resolution’s biggest problem: the burden of proof placed on the accused by this bill, if introduced into a real courtroom, would be struck down immediately.
The legal jargon of the legislation essentially means that anyone accused of violating the affirmative consent policy would have to prove his or her innocence with at least 50 percent certainty. California students better start carrying their clipboards with them when they go downtown to get consent in writing (and maybe stop by a notary on the way back to their rooms); an accused student’s word, even against an accusation with no additional evidence behind it, isn’t going to be enough to successfully defend themselves.
Here’s a scenario — a student who was slipped date rape drugs is taken back to the rapist’s apartment and sexually assaulted. Traumatized by the experience, the victim musters the courage to face down their attacker and files a complaint against them. The rapist responds with a counter suit.
In this scenario, the victim has no more evidence to offer to prove their innocence (which the burden is now on them to do) than the rapist does; under this bill, both victim and perpetrator face the same punishment.
Giving consent a more definite definition isn’t a problem in it of itself, but requiring schools to rule like criminal courts on the sex lives on their students in order to circumvent the innocent until proven guilty doctrine is.
While the California congressmen and women who wrote this legislation certainly have their hearts in the right place, the negative effects of this particular statute outweigh its benefits.