California's New Affirmative Consent Standard

So, Gov. Brown signed a new Affirmative Consent Standard into law on Sunday, which makes actual positive consent required in any interaction of sexual relations.  In all cases.  And unconscious, sleeping, drunk or drugged people cannot give this consent.  That's good right?  Think it through.  Have you ever had sex with someone who had a blood alcohol level over .08?  Are you sure?  And I'm not just talking drunk, hook-up sex... I mean this for people in committed, long term relationships.  Like married people.  Ever have a bottle of wine or two with the spouse to celebrate an anniversary?  How about on your wedding night?  Then it's likely you are a rapist.  Or a rape victim.  Indeed, according to this law, you are likely both.  Are you comfortable with that?  Are you comfortable with your spouse being a rapist in the eyes of this law?  I'm certainly not.

Contrary to what supporters of this law have been saying in internet comments, it's possible to disagree with the language of this law, and still be against rape.  I know I am.  In many ways, I'm far harsher on the crime than most people who support this law tend to be (I fully support the death penalty for rapists).  But listening to the other side, you're either 100% on board with this, or you want people to be raped.

"But, it's just common sense that it will only be an issue if the victim complains to the police!"  One, the law has nothing to do (and never has) with common sense.  It has everything to do with the letter of the law.  And what prosecute will ever want to be painted as "pro-rape".  Two, and this is the important part, unable to give consent means that even someone with no regrets was still a rape victim.  And if cops happened to stumble upon a couple in the act, and decide to breathalyzer both parties, it's entirely possible to have one or both to them arrested on a charge of rape.

Now, contrary to what supporters of this law say, the alternative is NOT "do nothing".  It's "craft a law that doesn't criminalize otherwise consensual sex between two people who may be over the legal limit."  This really should be a no brainer, and if it's really difficult to write the law in such a way, then perhaps it's a law that shouldn't be written?

Edit: citation here

23 comments:

Cass said...

Not having read the bill, it's hard for me to understand how it can possibly work.

The presence or absence of consent is still going to be a "he said/she said" thing. According to normal standards of evidence/burden of proof, the burden is first on the prosecution to prove that a criminal act took place. Since absence of consent is already an element of rape, it's hard to see how this changes anything.

Sounds to me like a feelgood statute that will have very little effect on actual cases, unless of course the law places the burden of proof on the defense to prove there was consent (which, by the law, can be nonverbal).

Cass said...

OK, here's the bill:

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967

Grim said...

It sounds as if the lever that moves the world here is the question of who complains. The one who complains is protected by their drunken status; the one who is accused cannot appeal to it. The one who complains is protected from "disciplinary sanctions" for violating the student conduct policy "at or near the time of the incident." The accused, on the other hand, is to be judged on a preponderance of evidence standard only, not a reasonable doubt standard, and thus is very likely to be found guilty of charges.

So really, if you're a drunken frat boy, you should ascertain the name of whomever you had sex with last night and immediately file a complaint against her in the morning. That protects you from any suggestion that you might have been violating the student conduct policies about reckless drinking or sexual harassment, and it makes the fact that she was drunk legally irrelevant (but the fact that you were drunk is an important part of your case against her; indeed, if you can prove it and the sex, you've adequately proven the charge).

It's a pretty stupid law that creates such a perverse incentive.

Anonymous said...

So really, if you're a drunken frat boy, you should ascertain the name of whomever you had sex with last night and immediately file a complaint against her in the morning.

creates such a perverse incentive...

Yup. I'd also think this would get you out of child support too if you became a father that evening...

Texan99 said...

You could get consent in writing, but then what to do about the problem that the signatory party was drunk and therefore lacked the mental capacity to sign?

Best just not to have sex at all. Way too many pitfalls.

Or we could institute a much more formal, long-term contractual arrangement, with formalities and licenses and authorized persons to preside and witnesses and so on, and say that it's the only socially sanctioned context for sex. We might provide for certain standard treatments for issues like property and progeny. That would be the Progressive thing to do.

Ymar Sakar said...

It's a pretty stupid law that creates such a perverse incentive.

Still not wishing to consider that's it intentional in a format?

Get written contracts, video statements before hand. That's the way. Also witnesses, you need witnesses.

In Hollywood, they call that HBO or maybe it was porn production.

Grim said...

I agree, Tex. That's clearly the way forward to a new and better era.

raven said...

The ambiguity is deliberate IMO-almost all law these days seems to be designed for selective enforcement to use a a political tool against enemies.
We have an initiative coming up in WA state now, supported by the usual leftist billionaires, prop 594, which will criminalize any transfer,with or without compensation, however fleeting, of a firearm from one person to another, without going through a dealer and a background check.
Loan your buddy a gun on a hunting trip? Criminal.
Try a friends gun at the local sandpit shooting range? Criminal.
Loan a gun to your friend some night because her ex has been threatening her? Criminal.
Safely store a gun for an absent friend? Criminal.
All this does is put a new tool in place to make criminals out of law abiding folks. That is the plan- as well as creating a de facto registry of all those old guns that have never gone through "the system".
Now of course the anointed will never be charged under this law, only those bitter clingers.

E Hines said...

There's an out, though, that destroys the law's efficacy, such as it was. The consent doesn't have to be verbal; it can be a gesture: a nod of the head, a move closer to the other person. That's a fallout of not having defined what constitutes affirmative consent.

And that's what destroys the law: "She nodded, yes, Judge." Or, "She snuggled on in, Judge."

Never mind that her nod was, in her drunkenness, her head falling down onto her chest; her snuggling was her falling over into her companion.

Any halfway decent lawyer can use that to beat the rap. Even in California.

And anyway, the law doesn't require active consent between the participants, it only requires the educational institution have a policy requiring that in order to get state funds. Which sounds to me like another reason to tell the state to take a...pill.

Eric Hines

raven said...

The process is the punishment-
"beating a rap" means lots of time , lots of money, and lots of reputation destroying publicity.

Cass said...

I think Eric has the right of it, but I haven't had time to think it over carefully.

They're got one whale of an evidence problem. I agree that a half decent lawyer (or even a quarter-decent lawyer) ought to be able to stuff the case in a dumpster.

Grim said...

Well, that's one reason they shift the blame down to 'preponderance of evidence.' They don't actually have to prove much by that standard. If they can prove that (a) sex took place, by preponderance of evidence, and (b) the person had been drinking, by preponderance of evidence... that's enough.

I don't think the standard is very hard to meet at all. You'll have the person's testimony to those two facts, to start with.

E HInes said...

"beating a rap" means lots of time , lots of money, and lots of reputation destroying publicity.

Guy's got nothing left to lose. The accusation already has trashed his reputation, wasted all the time he's already spent in school, and through that destroyed reputation damaged his future earnings for a long time into the future.

Eric Hines

Grim said...

A good point, although Raven's point is still valid. The process is a punishment, even if he has no reason not to commit to that process. And it's a punishment not even based on preponderance of evidence: this much of the punishment is based on the accusation alone.

E Hines said...

Oh, his response isn't limited to grunting through the school's process. He has lots of legal recourse.

Eric Hines

raven said...

After watching a friend get dragged through 13 years of court dates, four dismissals, four re-filing of charges etc. I sort of lost any faith in the system- the persecutor (intended) has a personal vendetta against him -he won, eventually,with a dismissal with prejudice. Acting as his own lawyer- he had to, the legal fees would have bankrupted a small country. This was a non violent, no victim crime- he was accused of having a machine gun. Now apparently the State has filed a civil suit against him-on some pretext.

Ymar Sakar said...

Keep your machine guns in sealed bunkers and underground storage.

Also, since Hasan can break into a mililitary base and get ammo and guns, national guard armories that aren't really defended, is also a better option, sometimes.

That and claymore, Se[]tex is a lot more useful than machine guns.

Duke Lacrosse players sometimes know all about the "process".

Being in college, your income is already damaged beyond repair, unless you have political connections or chose something useful like engineering or what the Silicon Valley boys hire out.

Cass said...

If they can prove that (a) sex took place, by preponderance of evidence, and (b) the person had been drinking, by preponderance of evidence... that's enough.

First of all, absent physical evidence, even proving they had sex is not easy. In most cases, it's her word vs. his.

Secondly, simply drinking is not enough. First, she has to establish that she was incapacitated. Not just that she had a drink.

Preponderance is a low standard (simply more likely than not). But what I keep coming back to here is that life is full of decisions that have consequences. Yes, we can think of an anecdote in which a particular person did nothing wrong and cases that were mishandled by schools (in other words, they didn't even follow their *own* rules correctly).

But the rule itself is what we should be looking at. Murder cases are mishandled by courts too, and innocents convicted. That doesn't mean laws against murder are wrong/bad.

When I actually look at the rule, I have less problem with it. Sure, it requires people to be responsible or risk unpleasant consequences. But waving the bloody anecdote doesn't strike me as a useful test of whether a rule is correct or not. I can certainly cite cases where a man was unjustly jailed for rape or murder for decades. Again, miscarriages of justice don't necessarily invalidate the general rule.

Any human institution will be flawed because people are flawed. I'm very inclined to the view that rules like this give plaintiffs too much power.

What I'm having trouble with is the notion that a rule that says people have a basic responsibility to obtain consent before having sex is somehow oppressive in nature.

Hard - nay, impossible! - to enforce? Yep. Even harder to prove. And I suspect that will be the result of this new law - not much will really change.

False accusations (that's what we're concerned with here) are already occurring, if you accept the defendant's side of most of these anecdotes uncritically. I'm not sure until I've thought about this a while that this law isn't just a feelgood measure that won't change much but I reserve the right to change my mind once I've had a chance to catch up with reading.

Ymar Sakar said...

Any human institution will be flawed because people are flawed.

These institutions aren't merely flawed. They are intentionally corrupt and intentionally evil and intentionally doing a lot of things people refuse to see.

Grim said...

I think you're missing my point, Cass. The point is that the statute allows frat boys to file complaints that would immunize them from the charge -- the statute specifically says that "a complaintant... will not be subject to disciplinary sanctions for a violation of the institution's student conduct policy at or near the time of the incident" exceptis excipiendis.

The statute was designed to crack down on sexual assault. The way it is worded creates a perverse incentive for the assaulter to file charges against the victim, because then the student conduct policy on sexual assault or harassment (which might have been used to expel him) can't be used against him.

The law should say something about someone who is a victim of sexual assault not being disciplined for violations, etc., not someone who 'complains of sexual assault.' It was written that way to encourage women to come forward, but the effect of writing it that way is to create an ambiguity in which the assaulter can complain he was assaulted, and gain all the protections of the law against being held to account for his conduct while drunk.

It's a terrible law. Not because of some bloody anecdote -- I haven't mentioned any. I'm talking about the structure of the law itself.

Cass said...

Well, first of all I wasn't saying you were waving the bloody anecdote. That was a reference to using a case - any case - where justice isn't done to suggest the law itself is therefore invalid. My quote, in the paragraph just before:

...the rule itself is what we should be looking at. Murder cases are mishandled by courts too, and innocents convicted. That doesn't mean laws against murder are wrong/bad.

If the statute does say this, it's bad law:

the statute specifically says that "a complaintant... will not be subject to disciplinary sanctions for a violation of the institution's student conduct policy at or near the time of the incident"

The complete citation isn't quite so open-ended, though:

(10) Providing that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution’s student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.

Since I'm pretty sure that colleges think sexual assault is a serious matter, I don't think it's accurate to say that "... the statute allows frat boys to file complaints that would immunize them from the charge". It seems narrowly crafted to prevent petty administrative harassment of accusers, not entirely bar a reciprocal charge of sexual assault.

This was only a quick reading, so I may well be wrong though.

Cass said...

"accusers or witnesses", I should have said in the previous comment.

Grim said...

'This is egregious!'

It's not narrowly constructed, although I agree that was more or less the intent. The narrow construction would be to specify that this is a law intended to deal with that "1 in 5 women" statistic, floated in terms of selling this law by everyone from California officials to the President and VP of the United States. It's intended to combat that problem by allowing women to charge men with sexual assault and be immunized from any consequences -- say, the fact that they were not only drunk but maybe high on illegal drugs like marijuana at the time of the incident. What the law meant to say is that we don't care so much about the drugs as we do about the rape. So if you got raped at a frat party, don't let the fact that you were smoking dope keep you from coming forward. We won't do anything to hurt you. All our efforts, as authority figures, will be aimed at your protection and the prosecution of the man who did you wrong.

That all strikes me as a laudable goal. I don't have a problem with any of that.

The failure of 'narrowness' comes in not admitting that this is our goal. In service to the ideal of sex-neutral legislation, the '1 in 5' story that was the ground for the law has to vanish from the law. The law has to pretend that we aren't passing it out of a concern for robust male-on-female assault, but out of a generalized concern for assault. So anyone might be a complaintant!

And in making that move, we end up with a law that now can't distinguish between the people it was devised to protect, and the people it was devised to control. The frat boys can file these claims, and in theory be immunized -- unless the school can prove an 'egregious' violation. Meanwhile, the girls they file against are now to be investigated on the assumption that the frat boy being drunk is itself grounds for thinking they, the women, were probably rapists.