California's "College Sex Bill" Won't Resolve Campus Rape Problem

A new bill has just hit the ground in the California legislature -- SB-967, addressing student safety on campus with respect to the campus rape crisis. You might think I'd be all over any law that tackles the rape problem, but actually, not so much, because this law has some serious potential flaws, and it doesn't address a huge issue: The campus rape problem is a crisis of culture, not legislature.

You can't legislate away the underlying problems causing sexual assault at epidemic proportions on college campuses in the US, and even though this bill is well-intentioned, it could actually do more harm than good. 

The bill would require public colleges and universities in California to adopt, among other things, an affirmative consent standard, in addition to adhering to existing laws requiring that they provide students with resources and support in the aftermath of a sexual assault. 

An affirmative consent standard in the determination of whether consent was given by a complainant. “Affirmative consent” is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. Consent is informed, freely given, and voluntary. It is the responsibility of the person initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Consent must be present ongoing throughout a sexual encounter and can be revoked at any time.

The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

This sounds great, right? It's a very clear, well-articulated definition of consent that hits numerous high points of concern to advocates. In fact, a similar policy has already been adopted by the University of California, in a policy memorandum issued in February. Their decision was probably wise, considering Berkeley is currently in the hot seat for the large number of sexual assault complaints it has racked up. 

There's been a great deal of nervous joking about how such a policy would work in practice -- would we see an uptick in notaries public around college campuses? Written contracts before sex? Would sex start to look like this? 

Naturally, opponents have also arisen to say that the bill goes too far, and will turn everyone into rapists. These kinds of reactions are common, and they're a telling illustration of how defensive our culture is when it comes to confrontations of rape culture. Even though enthusiastic and affirmative consent is something each couple can negotiate within their own boundaries, it's treated as some sort of horrible imposition on couples that will ruin sexuality and put men at risk of being falsely accused of rape. 

Fascinating that with any measure designed to empower rape victims (which include men), the automatic assumption is that such measures will increase the numbers of false accusations against men. 

Rape is a serious problem on college campuses, but policymaking alone -- even on the state level -- isn't a solution. We haven't been able to legislate away any other social ills, though of course legislation has played a role in fighting them. What's ultimately been an important determining factor is the fight on the ground: The ADA didn't magically create accessibility for disabled people; disabled people fought for accessibility and are still fighting. The Voting Rights Act didn't magically ensure that people of colour had access to the polls; people of colour fought, and are still fighting, for their voting rights. 

While legislation and policies can create a clear public position, they can't stand alone. This legislation doesn't include measures like requirements that colleges and universities educate their students and foster an environment of enthusiastic consent; for example, incoming freshpeople could be required to attend an orientation that included a discussion on sexual safety (STIs are on the rise in the US, especially among college students) and enthusiastic consent. 

Requiring solid on-campus resources, which this bill does, is great, but one issue of concern is that it still refers campus rape to campus authorities upon first report, rather than to off-campus law enforcement. Individual reporters should have the decision about when, how, and where to report, but campus officials are not qualified to handle rape cases, nor should they be handling them in the first place. This is a task for trained law enforcement, who should be the first avenue of referral.

Keeping the campus rape problem on campus maintains the air of secrecy and shame that surrounds it, and also allows campuses to continue hiding rape statistics and concealing information from their student bodies. Furthermore, it means that students may not have access to the justice they deserve, and could continue to be forced into untenable situations (like mediation) with their rapists. 

While college campuses may be entitled to make decisions about expelling rapists, they aren't in a position to be handling felonies. Given that they haven't done a good job of addressing the problem thus far, why does California's legislature think they'll be any better about it in the future? Does the bill really create a mandate for a "consistent rape response," as the "Fresno Bee" puts it?

I am all for anything that makes college campuses safer, but the legislature hasn't convinced me that this is it.