3.4: Rape, Date Rape, and the “Affirmative Consent” Law in California (Noah Levin)

16 Rape, Date Rape, and the “Affirmative Consent” Law in California
Noah Levin⁵⁹

Any type of forced sexual contact is, at a minimum, criminal assault and often passes a threshold into rape. Where the line is drawn is not directly relevant for my current analysis, which is two related issues: to understand when someone is capable of consent; and to appreciate when someone is reasonable in believing they have obtained consent. The term “date rape” quite literally does not need a qualifier: if rape occurs, it does not matter how. When the term is used, however, it is usually meant to denote “impaired sex” in which one or more parties involved in sexual contact was impaired due the use of alcohol or drugs and their ability to consent was questionable. Understanding this threshold, of when proper consent to sexual contact occurs, is the task at hand. The state of California has moved from a “no means no” policy to a “yes means yes” policy for sexual consent on college campuses, which means the assumption is that parties must actively consent to sexual contact for it to be permitted (yes means yes) rather than assuming that sexual contact is fine until someone says otherwise (no means no). The California “Affirmative Consent” law contains one of the nation’s most rigid requirements for consent, and I maintain that, while the intent behind the law is noble and sorely needed given the rampant occurrence of sexual assault across college campuses, the law itself is overly rigid and too far-reaching, resulting in criminalizing sexual contact that does not, and should not, constitute anything criminal. It is, however, a good first step.

Two Latin phrases are used in understanding guilt, both morally and legally: mens rea and actus reus. The first, mens rea, means “guilty mind.” It is meant to capture a situation when someone intended to commit a crime. The second, actus reus, means merely that a guilty action occurred. For example, if I am throwing a baseball at a wall in a park with my eyes closed and someone walks in front of me and gets hit in the eye and ultimately loses it, a guilty action occurred. I assaulted someone in a way that I should not have – it wasn’t an innocent mistake or entirely an accident as I shouldn’t have been doing what I was doing. However, I also didn’t intend to hurt someone with what I was doing: I did not have a guilty mind. Because the action occurred (at least in part due to my negligence), it doesn’t matter much what I intended: something bad happened, and that’s enough for me to be punished. But this isn’t always true, as real accidents do happen, and even when something that is a “guilty action” occurs, there might be no one to blame. For example, if a bird flies into a car windshield, that car in turn hits my car and forces me into a sidewalk where I hit a pedestrian, there is no one to blame. People can also have a guilty mind with no guilty actions and we are wont to punish them, as is in the case of attempted murder where the attempt results in no harm whatsoever. So how are these relevant for the current analysis?

For a rape to occur, there has to be unwanted sexual contact to the extent it qualifies as a rape. There must be the actus reus. It is hard to imagine someone raping someone without the actual assault occurring (though there are many ways that one can be assaulted, no doubt). But what if an act of rape occurs and there was no intention for it to happen? There are a few different ways that this can happen. If someone was grossly negligent (willingly chose not to do what they should have) or didn’t do their due diligence (didn’t do enough to make sure they were doing the right thing) in obtaining consent, then, even if there was no mens rea a person can still be guilty of having committed rape. What this means is if someone engages in intercourse with a severely inebriated person that is barely conscious or if someone makes strong advances and doesn’t allow for the rejection of such advances, dominating a situation in which the other party doesn’t feel safe to say no, then due diligence to obtain consent was not taken. I’ll return to the ideas of negligence and due diligence later, but it’s the defense of “well, she didn’t say no,” that led to the California “Affirmative Consent” law. It shifts the standard of requirement away from one person having to explicitly state that they do not want to engage in sexual contact into one that requires both parties to ensure they have obtained consent from the involved parties. The full text of the law, Senate Bill No. 967 (SB 967) which adds to Section 67386 of the California Education Code, was passed September 28, 2014, and is often referred to as the “Affirmative Consent” law, is reprinted below:

SB 967, De León. Student safety: sexual assault.

Existing law requires the governing boards of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions to adopt and implement written procedures or protocols to ensure that students, faculty, and staff who are victims of sexual assault on the grounds or facilities of their institutions receive treatment and information, including a description of on-campus and off-campus resources.

This bill would require the governing boards of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions, in order to receive state funds for student financial assistance, to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking that include certain elements, including an affirmative consent standard in the determination of whether consent was given by a complainant. The bill would require these governing boards to adopt certain sexual assault policies and protocols, as specified, and would require the governing boards, to the extent feasible, to enter into memoranda of understanding or other agreements or collaborative partnerships with on-campus and community-based organizations to refer students for assistance or make services available to students. The bill would also require the governing boards to implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence, and stalking. By requiring community college districts to adopt or modify certain policies and protocols, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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.

The people of the State of California do enact as follows:

SECTION 1. Section 67386 is added to the Education Code, to read:

67386. (a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:

(1) 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.

(2) A policy that, in the evaluation of complaints in any disciplinary process, it 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.

(3) 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.

(4) A policy that, in the evaluation of complaints in the disciplinary process, it 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 activity.

(C) The complainant was unable to communicate due to a mental or physical condition.

(b) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and 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. At a minimum, the policies and protocols shall cover all of the following:

(1) A policy statement on how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality.

(2) Initial response by the institution’s personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.

(3) Response to stranger and nonstranger sexual assault.

(4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview, as appropriate.

(5) Contacting and interviewing the accused.

(6) Seeking the identification and location of witnesses.

(7) Providing written notification to the victim about the availability of, and contact information for, on- and off-campus resources and services, and coordination with law enforcement, as appropriate.

(8) Participation of victim advocates and other supporting people.

(9) Investigating allegations that alcohol or drugs were involved in the incident.

(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.

(11) The role of the institutional staff supervision.

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

(13) Procedures for confidential reporting by victims and third parties.

(c) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall, to the extent feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students, including counseling, health, mental health, victim advocacy, and legal assistance, and including resources for the accused.

(d) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, empowerment programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the institution’s policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution’s overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy.

(e) Outreach programming shall be included as part of every incoming student’s orientation.

SEC. 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.

To summarize what this law does, it requires that each individual, regardless of relationship status, prior history, or lack of protest, actively obtain express consent before and during a sexual encounter. This does not need to be the mood-killing “Do I have your permission to continue?” every few seconds; being an active, engaged participant that responds positively to and initiates wanted contact is enough. In other words, if both people are actively into it, you can keep going. If there’s any doubt (and this is important), then you need to ask to be sure. We do this with most things (and there’s a hilarious video analogizing having sex to offering someone tea that can be found online and is appropriately titled “Tea and Consent”⁶⁰), so it shouldn’t be odd to do the same thing with sex. We don’t force people to drink tea or force people to have a conversation with us, and if we don’t think they’re into it, we ask.

There are some worrisome legal technicalities that arise with this law as written, however. With such a shift toward placing responsibility on seeking consent and ensuring the other person is both capable of consenting and actually consenting, how do we apply reasonable standards? How much alcohol can someone consume and still be able to consent? The case could be made that any consumption of alcohol or drugs impairs someone’s judgment. Can you tell how much someone has had to drink? Or how coherent they are after a few drinks? How many people have said, “no, really, I’m good” when they’re not? Would ignorance be a defense here? It also requires a preponderance of evidence (which just means it seems more likely than not that a violation occurred), and this could severely undermine the rights of the accused. I say this not to defend attackers, but to defend the liberty of everyone. The problem with current laws is that the accused can hide behind their legal protections quite effectively, but we must be careful not to swing to other side too far and make it overly difficult for innocent people to defend themselves when unfairly accused (as does occur).

Now to be brief in my major criticisms, I would like to point out situations that would run afoul of this law:

1) A quadriplegic requests their partner unhook them from communication devices in order to make intercourse possible; 2) A committed married couple gets very drunk together and engages in intercourse, with neither actively consenting to it and barely remembering engaging in the sexual acts in the morning; 3) One half of a committed married couple gets very drunk while the other is sober, they move to the bedroom, and the inebriated one says, “go ahead and finish up if I fall asleep”; 4) A deaf individual is concerned about being able to communicate during a sexual encounter without violating the terms of their school’s policies.

But I would like to point out which situations this law rightfully captures as problematic,

5) Two drunk students go back to a dorm room, start making out, one of them begins pulling off each other’s clothes and is not met with protest, which eventually leads to one-sided intercourse in which the other student is physically uninterested and uninvolved, but never explicitly objects; 6) A sober student engages in intercourse with a very inebriated student that actively consents to intercourse; 7) One member of a dating couple has sex with their partner after that partner passes out after pulling an all-nighter.

Finally, the possible implication in the law that someone whose judgment might be impaired is incapable of sexual consent seems to be a problem. This restricts one’s autonomy to be able to do such things, and being inebriated does not prima facie mean that one is unable to consent to sexual activities. Many introverts utilize the inhibition-defeating effects of alcohol to help them in social situations, even with those they know. I am not advocating for this (nor am I criticizing it), but it seems to be an important choice someone should be able to make without fear of legal retribution (in this case, it would be violation of school policies defined by the Educational Code).

SB 967 is a good start to fixing the awful and widespread problem of sexual assaults on college and university campuses, but it is overreaching and results in criminalizing situations that should not be problematic. In doing so, it suggests there is something wrong with activities that individuals ought to be able to choose to do as an important expression of their individual autonomy. A move to a standard of affirmative consent is commendable, necessary, and important, but we must be careful to strike the right balance with the laws we create.

For Review and Discussion

1. Are there clear criteria we can use to determine when someone is capable of consent? What would they look like? Or why would it not be possible?

2. It is generally assumed that people under the age of 18 are incapable of consent because they lack the intellectual development to be able to consent to such things (these are cases of “statutory rape”). Let’s say that someone is over the age of 18 but has the intellectual and maturity level of a 12-year-old. They have the biological urges of an 18-year-old, but might not be able to appreciate what it means to consent. Would they be able to consent to sexual contact? If not, are their rights being unfairly restricted?

3. Which standard do you think is better and why: “yes means yes” or “no means no”?