Thoughts on Affirmative Consent


Some Issues with Bill No. 967


Before I start in on this I just want to state up front that I am not a lawyer or any sort of legal consultant. Nor am I particularly well-read in laws. What I do have, is a pedantic set of principles and the ability to think about how the way something is written affects the interpretation of a work. Secondly, I think that this bill is a step in the right direction; but I take issues with a few statements made in it. As someone who has been there for friends who have been raped, and as someone who has seen the legal system used to rob an innocent of their education due to a false accusation, I view this bill as a step in the right direction, but one which may not offer a fair solution in all cases.

What is Bill No. 967 (AKA Affirmative Consent)

Bill No. 967 is an addition to Section 67386 of the Education code for California. It's primary goal is to enforce stronger standards and practices for dealing with sexual assault on postsecondary (college) level schools. In order to do so, it calls for funding to any institution not following the bills outlines to be cut. This is probably the simplest and most effective way to get any small or large institute to rapidly implement change. Also, the bill states:

This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state, 
reimbursement for those costs shall be made pursuant to these 
statutory provisions.

Which means if costs occur in implementing programs outlined by the bill the university will get their money back after a bunch of forms are filled out. (I'm estimating it's a bunch since government forms rarely are succinct)

All in all, after reading the introduction to the bill (or Legislative Counsel' s Digest as it is headed) this sounds like a perfectly sound, reasonable and quite good addition to the law.

Getting Into Details and where we run into problems

Some readers may stop after the digest, since the bill sounds great there then we'll vote and move on. Done. But other people reading on might immediatley find that there is a large bias in the wording of some parts of the law. Let me give you my interpretation of the bill as I read it, line by line.

Section 1a Item 1: This bullet point is good up until the middle. The first half states what most people find obvious: If you say yes, then you mean yes. And not saying no does not count. This is a great thing to have in the bill because it makes consent more explicit. But, halfway through we run into this:

Affirmative consent must be ongoing throughout a sexual activity and 
can be revoked at any time

I'm not going to pull a media and make the joke about having to say yes every 5 minutes to consider not being a rapist, but this portion of the bill stood out to me becuase of the revoked at any time clause, this could be horribly misused by anyone trying to game the system. I imagine that the intent of this statement is to provide coverage for those who are raped and only realize it after waking up the next morning confused. Which is a valid case. However, if I were a terrible person who wanted to get back at someone I held a grudge at, one could view this clause as stating that I can call rape on anyone I had relations with, and this law section would allow that.

Obviously this is an extreme, but so is murder and that happens literally every day; so I view this as something that could happen. My personal hope is that this clause will not be mis-used, but with the way the law is written now, I don't know how one would rewrite it without being extremely verbose or somehow putting a time limit on how long you can wait before filing a charge of rape against someone. Because of the seriousness of the crime it's likely impossible to rewrite it in such a way as to prevent false charges as described, so for the safety of victims it is written in an overly broad manner.

Section 1a Item 2: The nature of this two point item shifts responsibility from the defendant to the accused. This makes perfect sense in context with the rest of the bill. The item states that believing you have consent because you're drunk doesn't work. This is a good thing, though I did find a bit of an issue with the second bullet in Item 2:

The accused did not take reasonable steps, in the circumstances
known to the accused at the time, to ascertain whether the 
complainant affirmatively consented.

This point sounds perfectly reasonable if the law then outlined what these reasonable steps were. But it doesn't. It just says that you took the time to get consent within the context of wherever you were doing at the time. It is very vague. We can't ask for a manual of what to do in every circumstance, I understand this, but "reasonable" steps are something that is entirely up to a jury to decide. Which, given the nature of the crime, is likely going to go the way of an alleged rape victim. In the case of a false charge, this clause could easily be used to say that someone didn't try hard enough to get consent, and therefore is a rapist. Because of American culture, we are far more likely to believe someone stating they were raped than we are someone defending themselves from it. Luckily, the second part of that sentence (in the circumstances...) can be used by a defending lawyer to argue on the same vague level as the first part. So really it will come down to whether or not a jury will be impartial and listen to both sides before coming to a conclusion.

Section 1a Item 3: Simply put, this states that we must have a standard in determining if the evidence at hand justifies a charge of rape or not. I had trouble with this section simply because it is worded so heavily in "legalese":

A policy that the standard used in determining whether the elements
of the complaint against the accused have been demonstrated is the
preponderance of the evidence.

It may be my unfamiarity, but this sentence is needlessy round-about, and could have been stated more plainly.

Section 1a Item 4: This line deals with more policy making, and in a laymans terms states: If you are accused of rape, than you cannot defend yourself as unaware of what you were doing if your accuser was: asleep, drugged, or mentally unsound. Each of those three around broadened a bit within the subitems of the clause.

Once again, this is where the bill is shifting the weight of the legal case towards being more heavily focused on how the accussed can defend themselves and not on how the accuser can. Specifically: shall not be a valid excuse that the accused believed that 
the complainant affirmatively consented to the sexual activity 
if the accused knew or reasonably should have known that the 
complainant was unable to consent...

The qualifier reasonably here set up some flags for me. Because this is a heavy double edged sword. For example, let's say two people get really drunk at a party. They end up hooking up, and then they wake up the next morning after their respective black outs and have no idea who initiated their intercourse. Is this a case of mutual rape? Where neither parties reasonably could have known that either was unable to consent? In that case, would it be whoever goes to a lawyer first? Once again, this bill uses some vague wording that is going to be up to a judge/jury to figure out. What's reasonable within different contexts changes with every new situation.

It may be "reasonable" for me to hit one of my friends upside the head if they're being an idiot or making fun of someone. It is far less likely for it to be reasonable for me to walk up to someone poking fun and to strike them. See how the context works? So in regards to the law and my imagined scenario of mutually assured legal destruction above, we are once again at the hands of a jury, which is likely to be biased, especially since rape is such a serious crime and not to be taken lightly.

Section b, a Victim Centered Policy

The second part of the bill details how the institutions need to implement policies in order to recieve funding for "student financial assistance". One of the oddities of the bill jumps out to me here:

... the governing boards of independent postsecondary institutions 
shall adopt detailed and victim-centered policies and protocols 
regarding sexual assault, domestic violence, dating violence, and 
stalking involving a student that comport with best practices and 
current professional standards. 

The thing that strikes me is that the law mandates policies and protocols to be victim oriented. While this may not sound that strange, you have to understand that as an American, you are innocent until proven guilty. This means that any policy which discusses a victim and an aggressor should only be in place for cases which have been proven. There must be an aggressor to have a victim.

Still with me? Good, because I'm going to jump ahead a few line items to the point that narrows in my problem with the bill, Section 1b Item 5:

Contacting and interviewing the accused.

Read that. Now read it again. Do you notice something here? No? This item within the victim centered policies uses the word accused. I want you to stop and think about how language works and the type of grey matter shift going on in your brain when you read this.

The problem with item 5 is that there is a victim, and there is an accused. As I stated before, you cannot have a victim if there was no aggressor. If the accused is still just an accused they have not been proven or convicted as a rapist, and therefore there is no victim yet. But the wording of this bill is problematic because it immediately shifts into the idea that when someone brings a rape case to the table, you must immediately believe them to be a victim.

Convinced I'm evil yet? No? Think I'm pedantic and focusing too much on this? Maybe, but the way you think is dictated by the ways you have to express yourself, namely through language. If the language of a law is not fair to all parties than the law itself is unfair, and if that's the case how can you ever expect an impartial jury system to ever take place?

Let's go over the breakdown again for this section.

Section 1b Item 1: This is by far the most important item on this bill to me.

A policy statement on how the institution will provide appropriate
protections for the privacy of individuals involved, including 

Why is this important? To accuse an individual of rape is a serious thing to do. This act must be justified, and if done, the case must be confidential. Not just for the accuser's welfare, but also the accused. You might think I'm crazy saying we should defend a rapist, but I'm not saying that. I'm saying that until someone is proven to have done something, you should not slander their name. When you call someone a rapist, whether you like it or not, you are associating their name with a heavy crime that will stigmatize and follow them for the rest of their life just as much as being a possible victim of rape will define your own. Confidentiality is the most important thing you can hold here.

If the accused does turn out to be a disgusting excuse for a human, than yeah, good that they get something so heavily stigmatized associated with them, and good riddance. But if they're found innocent or false charges were alleged then that will still be held over them by society. Media will seize on an accusation and cause many to think of someone as a rapist, whether or not they did it or not. This type of circus should never be allowed. I saw a friend's college career disappear before because of something like this. It is a serious crime to accuse one of, and should be treated as such.

Section 1b Items 2,3, and 4 are all fairly standard and properly worded in my mind. They detail that evidence is important and there must be policies in place to handle the initial case, collect evidence, and differentiate between stranger vs nonstranger assault. The only thing I can think to say critically of this, is that this puts the policy in handling this matter into the realm of the university, when really, in my opinion, these types of circumstances should immediately have police involvement so that nothing gets screwed up by underpracticed officials who may not know how to properly deal with the situation. Granted, there is nothing stating that the University could not just call in the police to handle all these items.

Section 1b Item 5 has already been addressed, but I'll just reiterate my thought here: The language is biased and should be changed to reflect a fair trial and treatment of both parties within the case.

Section 1b Items 6,7,8, and 9: also follow what one would expect from a victim oriented bill, simply stating that in general one must find witnesses, provide resources for the possible victim, and involve individuals specialized in advocating and helping. Number 9 ensures there are policies in place to investigate the possible usage of alcohol/drugs in all cases.

Section 1b Item 10 is a rather strange clause. It states that any witness or complainant (person who brought in the case) are not held accountable for violating an institutions conduct policy at the time of the incident. So long as the institution determines the violation wasn't outstandingly bad, adversely affecting the safety of others involved, or screwing with academic honestly, the violations are fine.

Trying to think of an example of this, the only situation coming to mind would be a party where two people get drunk and an incident occurs. Within the investigation, the witnesses and the person bringing the case up (likely the victim in this case) will not have sanctions placed on them for any minor misconduct they might do. I'm not sure if this broad statement covers underage drinking (I get the feeling it would vary by institute), but it likely covers things like skateboarding down a hallway, shouting and being an annoyance to others while intoxicated.

Silly examples aside, this clause could be used to justify defense by a victim against their assaulter that might normally be prohibitive. Most student conduct codes prohibit violence between students. However, in this case, the rule would be ignored in the nature of self-defense. This is a good thing, otherwise the student might get in trouble by anyone pedantically upholding the conduct rules for simply defending themselves.

Section 1b Item 11 states that there must be a policy dictating the role of staff within the case. This brings up a point I brought up before: The staff of a University or other secondary school is likely not equipped to properly handle these types of cases. Their role must be defined, and this line item states so.

However, it states this within the victim-centered policy making section of the bill. This means that not only does the institution define it's own role in these cases, it also means that whatever policies put in place will be biased and oriented towards a possible victim. While this is not neccesarily a bad thing, the addition of accused-centered policies such that both parties are treated fairly and confidentially by the law would help balance out the bill. Before you call me a defender of rapists, remember that there are people who falsely accuse out there, and that by law everyone deserves a fair trial.

Section 1b Item 12 adresses my previous concerns about campus officials being ill-prepared for this, it states:

A comprehensive, trauma-informed training program for campus
officials involved in investigating and adjudicating sexual assault, 
domestic violence, dating violence, and stalking cases.

this is a fantastic addition to the law. Since it mandates there must not only be staff who can handle it, but that they must be trained in a comprehensive way to deal with these situations. This clause alone is a wonderful step forward, though I wish that there was something more in this clause stating that the training would be done by police or federal officials who specialize in this.

One of the few things I can say about this in a negative tone is that most people are simply not equipped to handle this type of thing. And for a victim to come forward, they might choose to tell a preferred teacher before they tell an official. This type of behavior where one does not seek help due to being uncomfortable is what I personally have seen in individuals. So this clause could be helped by expanding it to include guidelines for all staff of an institute, such that they know to call in someone properly trained if a student approaches them with this type of issue.

The last item of Section 1b, Item 13, says there must be

Procedures for confidential reporting by victims and third parties.

Since this line item is within the victim-centered section, it seems to make sense. But this statement is cheekily snubbing out the ability for someone who believes that they've raped someone to report it. Does that idea sound strange to you? Someone confessing to rape or reporting it?

Imagine this, a scenario like the one's I've described before, where two individuals are blackout drunk, they hook-up without either party really being aware, and then wake up the next morning. One of these people can decide to be a victim, but say they don't report it. And now the person who feels they took advantage of the other has a guilty conscious. They cannot report this feeling in a confidential way to the administration unless the institute has more policies in place than just those dictated by Item 13.

While it might be hard to imagine, there are people in the world who make mistakes and own up to them. No matter what the damnation to them may be. These people are rare, but they exist and those who need a clean conscious should be able to bring forward their case. Neither Item 13 or Item 2 of section 1b cater to the needs of someone who wants to be brought in for something they're guilty of. Once again, call me a rapist defender I guess, but I believe everyone should have an equal opportunity to get help or have their case be heard in a confidential way before they get sent to prison.

Section 1C and 1D, Money money money

Both sections 1C and 1D deal with enforcement of the policies mandated by the above. The way you get any sort of large institution in America to do something is to talk in the language they understand: money.

Section 1C simply says that in order to recieve state funds, the campus must have collaborative partnerships with advocacy and other support groups, to the extent feasible. This qualifier is a way of saying, if the campus has no group to handle X, then it's ok because it wasn't feasible to have a partnership with something that doesn't exist. Since the other policies help put in place these changes for better resources, I don't imagine that qualifier will be much of a problem.

The other thing I'd like to note is the last part of Section 1C:

and including resources for the accused.

This last sentence really helps me respect this bill more. As said above, I was put off by the victim-centered policy without a similar set of policies for the accused. But at least outside of that section, it also mandates that there must be resources of the accused as well. Note that this section is included in the details of getting funding.

If any institution fails to provide resources for an accused person, then their funding should be cut. That is the power of that sentence being contained within that section. Note that this holds true if resources are not provided to potential victims as well. An enforceable clause such as this will, I hope, cause both parties of these types of crimes to be taken seriously, confidentially, and fairly.

Section 1D reiterates the requirement of these policies to be upheld otherwise state funds will be removed. But further goes on to note that the university must not only implement the policies, but promote these policies and make all students aware of them. This is also a good thing. It means victims will know where to go, who to talk to, and what to do when incidents occur. It also means accused and individuals who witness any crimes will also know, so far as they can remember, what to do and who to contact.

Section 1e this last part is both good and bad. Outlining that an outreach program must be included sounds great on paper. However, the content of that orientation can cause divides in what might otherwise be a normal and happy group. For example, I recently watched a video where policies seemed to have gone too far. Instead of bringing people together, they only drove them apart. After looking at the people who produced the video I decided that they seemed like people whom I would normally disagree with on the political spectrum, but I think part of their arguments hold validity.

When you make culture and differences about how others have oppressed others, you shut out narratives that might have happened otherwise, such as why culture X is so great, or why culture Y has adopted new things because of Z. If all you ever focus on is the negative, than how will anything positive ever happen? Student Orientations should familarize students with each other and make all students comfortable to be who they are. Dialogue on not harassing can be part of that without taking the extremist ways that the university in that video did. I'm not saying that it shouldn't be talked about, no, history is important, but the first thing you learn about someone shouldn't be how hated they might be. You should be free to make your own decisions on what kind and type of person they are. But I digress, back to the bill.

Last paragraph, Section 2.

At the very end of this long list of items is a single paragraph dubbed section 2.

If the Commission on State Mandates determines that this act
contains costs mandated by the state, reimbursement to local 
agencies and school districts for those costs shall be made 
pursuant to Part 7 (commencing with Section 17500) of Division 
4 of Title 2 of the Government Code.

Which simply says that if you spend money on implementing the law, you'll get reimbursed according to a bunch of government forms (probably).

Wrapping up

If you're still with me, I'm amazed, good job, you could have probably read the bill yourself 5 times over in the course of my disection. And if you did, then let me know if your interpretation of the bill differs from mine. Do you disagree with me? If so, then read the disclaimer and then tell me so! If you can change or broaden my mind on anything I've discussed here I welcome it. And if I've changed your opinion, then feel free to stroke my ego in the comments section if you'd like.

As a whole, I believe this bill is a great step, revamping the law as a "yes means yes" vs "no means no" will likely cause rape statistics to increase, simply because the number of events that will count as rape and be able to be legally dealt with will. Believe it or not, I think it would be great to see that chart change, since it means more people are getting adequate justice served who might not have before. Honestly, this is what happened with sweeden when they expanded their definition of rape, and despite the disturbing statistics on the surface, if you look at the meaning of the data you'll see the benefits.

Despite the good faith of this bill, I do believe that there are flaws in it, and that it needs to be reworked to be more fair to both parties involved. (my major contention is item 5 as mentioned above) Perhaps other legislation deals with the issues I brought up, but my awareness of them is lacking. I only know that both sides should be fairly represented and until the legal definition of rape is changed from this:

The penetration, no matter how slight, of the vagina or 
anus with any body part or object, or oral penetration 
by a sex organ of another person, without the consent 
of the victim

to something more equal* than no matter what policies are in place, I probably won't be satisfied with any type of 'victim centered' policy.

Notice: If you feel like qouting this post, please link back to it, and try not to qoute out of context! Be a good netizen!

*This definition is not inclusive to the scenario where a woman has vaginal sex with a man by force, as she is not penetrating him and therefore is not, legally, raping him.

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