affirmative consent, reading legislation, and ambiguity

Making the rounds is this bill in the California legislature that would set certain requirements for college sexual assault policies, including a definition of the consent required for sexual activity. The bill adopts a standard it calls “affirmative consent”:

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. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity 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.

As Amanda Marcotte notes in the above-linked Raw Story post, this is giving some conservatives the vapors. It’s hard to believe, though, that this is entirely in earnest, since they are often not addressing the actual language of the bill itself, or else they are wildly misreading it.

Cathy Young at Reason, for example, does some nifty slight-of-hand to make it seem like the bill requires explicit, verbal consent—even though it explicitly, verbally does not require that. First she claims that “feminists” want such a legal standard, by citing exactly one such policy adopted at a private university two decades ago (though she hints that there have been many more!):

The idea that “no means no” is not enough and consent requires an explicit “yes” has long been the dogma of feminist anti-rape activists. In the early 1990s, Ohio’s super-progressive Antioch College was widely mocked for its code of student conduct that mandated verbal consent to each new level of intimacy. But despite the ridicule, sexual misconduct policies requiring clear, explicit agreement to specific acts continued to spread to campuses across the country.

[citation needed]

Anyway, her next move is to talk about the kind of consent that anti-rape activists suggest people voluntarily adopt in their own lives—which, it ought to go without saying, has nothing whatsoever to do with either legal standards generally or the California bill in particular:

Student activists, aided by the social media, have also been conducting a reeducation campaign advocating for sexual consent . . . . The norm this movement seeks to promote, according to a recent New York Times report, is to “ask first and ask often before engaging in sexual activity . . . .”

To counter the common view that such negotiations are awkward moment-ruiners, the activists quoted in the Times argue that explicit consent can be “fun” and even ensure better sex through communication. Educational posters on the Columbia campus proclaim that “asking for consent can be as hot, creative, and as sexy as you make it.”

With all these earnest reassurances, one can’t help wondering if the consent evangelists really believe what they preach: The ladies (and their gentlemen allies) do protest too much. Moreover, their protestations are belied by the fact that the preaching is backed by undisguised coercion. In feminist educator Bernice Sandler’s list of “Ten Reasons to Obtain Verbal Consent to Sex,” the assertion that “many partners find it sexy to be asked, as sex progresses, if it’s okay” is followed by “Because you won’t be accused of rape” and “Because you won’t go to jail or be expelled.” Fun, fun, fun.

I’m not sure that giving people advice on how to avoid the gray areas of consent in the law by voluntarily adopting a personal standard more stringent than the legal one is really “coercion,” but okay. Still all totally irrelevant to what the legal standard, especially in the California bill, actually is.

Eventually, of course, we get to the nut of it. Having prepared readers’s minds to be outraged with her history of feminists advocating for people doing things voluntarily, Young now brings in the legislation that is the putative subject of her article:

The California bill with its government mandate represents . . . another step toward a de facto presumption of guilt in campus sexual misconduct cases. It effectively shifts the burden of proof to the accused while also requiring colleges to use the lowest possible threshold—”preponderance of the evidence”—in assessing the validity of a complaint. In practice, this means that any minimally plausible charge is likely to be upheld.

Which would indeed be concerning if any of it were true, at all.

Here is the actual clause to which, I assume, Young is referring (she does not quote the language directly, which is, you know, not a good sign in statutory interpretation):

[T]he standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

So, first, the burden of proof is clearly on the complainant, who has to “demonstrate[]” the “elements of the complaint.” Second, “preponderance of the evidence” is NOT the “lowest possible threshold—far from it. It is the typical standard of proof in non-criminal cases. Remember when O.J. totally caused the death of his ex-wife and Ron Goldman, and then he got off because the lab kinda-sorta bungled the DNA evidence and a cop was caught in a lie, and where there’s a reasonable doubt we don’t send people to jail? And then later there was a civil trial and Simpson was found liable for his victims’ wrongful deaths? You may remember that the plaintiffs in that second case—adjudicated under a “preponderance of the evidence standard”—still had to put on, you know, evidence. They didn’t get to coast on a “presumption” that Simpson was liable.

All “preponderance of the evidence” means is that the plaintiff has to put on evidence sufficient to convince a jury or other “finder of fact” that it’s more likely than not that the defendant did the deed and is legally liable. Tie goes to the defendant. And that is basically the standard for most proceedings where we do not intend to deprive people of life, limb, or liberty. A student found to have committed sexual assault under this standard does not go to jail. He loses school privileges. That may be life-altering—but so is a multi-million-dollar verdict that can be attached to your wages for the rest of your life and brands you as a killer. To sum up, preponderance of the evidence is the standard level of proof required in non-criminal proceedings.

Moreover, the bill clearly contemplates mistake of fact as an affirmative defense:

[I]t shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.


[I]t 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 to the sexual activity under any of the following circumstances:
(A) The complainant was asleep or unconscious.
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual situation. activity.
(C) The complainant was unable to communicate due to a mental or physical condition.

So, first, under basic principles of statutory interpretation, belief that the complainant consented is a valid excuse when none of the listed circumstances obtained. In other words, mistake of fact is an affirmative defense to the charge.

Second, let’s look closely at this language, because it’s actually pretty well-drafted. Note that it does not say that consent is invalid when the accused or the accuser is intoxicated. Rather, it says, first, that the accused can’t rely on the fact of having been intoxicated to get around an objectively-shown lack of consent. And it says that when the accuser was so intoxicated that they didn’t know what they were doing, they couldn’t give meaningful consent. Drunk people can still have sex, y’all. (Phew!)

What about that “did not take reasonable steps” language? Does that mean that it’s on the initiator of sex to get explicit, verbal consent from their partner? No. It simply means that one can’t invoke mistake of fact if one did not behave reasonably under the circumstances, known to you at the time. In many—or even most!—cases, that might mean that no steps are required.

– If someone is kissing you back;
– if someone is moaning and arching at your touch;
– if someone is undressing themselves or you;
– if someone is groping you;
– if someone opens the nightstand drawer to get the condoms and the lube;
– OR even if you are a long-term couple and you have a standing agreement that Wednesday night is “business time” and your partner turns to you and says something sexy like “I might go to bed; I’ve got work in the morning

—what’s reasonable under the circumstances is probably just to move forward and assume that it’s time to get it on.

Look, possibly excepting at some extremely conservative Christian colleges, everyone who sits on an adjudicatory panel implementing these policies (i.e., filling the “jury” role) is going to be an adult who’s had some sex. Some of them may be young students who haven’t had very much sex, but even people who’ve only had a little sex can generally tell when you need to check with your partner. Are there bound to be ambiguous cases? Of course! There’s no area of the law where there aren’t ambiguities, and you can’t write a sexual assault policy, rape law, or any other instrument of human law that eliminates them. But in this case, the policy does what the law usually does when ambiguity is inherent in the thing being regulated: it asks finders of fact to put themselves in the defendant’s shoes and say, “What would a reasonable person have done under these circumstances?” If it would have been reasonable to stop and ask, “Are you okay with this?”—for example, if the person is crying, or stiff and silent and unresponsive—then we’re probably going to expect people to stop and ask, yes. But in the vast majority of cases, where two people are acting like they’re into what’s happening, what’s reasonable is to respond to your partner’s cues like a normal human being and have some sex.

What is not reasonable is to leap, as Young does, from this very modest “do what is right under the circumstances known to you” test to saying that California legislators have

essentially redefine[d] some 95 percent of human sexual encounters as rape.

Have a teeny, tiny bit of faith in your fellow citizens, Ms. Young! Nobody is doing that! Good grief.

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