California politicians are aiming to entrench and expand an Obama-administration policy that has questionable implications for the rights of the accused.
Senate Bill 967 would require California universities whose students are receiving financial assistance to change their sexual-misconduct policies. Colleges would be required to follow a standard of “affirmative consent” from students engaging in sexual activities and follow a “preponderance of evidence” standard for disciplinary measures.
Supporters claim that its measures are needed to “flip” a status quo that makes it too difficult for victims to come forward, but critics allege that two provisions undermine the rights of the accused.
The preponderance standard essentially means that California universities will be forbidden to give accused students the benefit of the doubt that is accorded in criminal court proceedings. The standard is not only broader than the “beyond reasonable doubt” standard applied in criminal courts but also broader than the middle-bar standard of “clear and convincing evidence.” SB 967 would require schools to take disciplinary action against all students deemed more likely to have committed a sexual offense than not.
Joseph Cohn, the legislative and policy director of Foundation for Individual Rights in Education (FIRE), noted that upon the dissemination of this letter, many universities lowered their standards from the intermediate “clear and convincing” standard to preponderance in order to avoid lawsuits for failing to comply with Title IX. “Preponderance” is now nearly ubiquitous.
The mandate for preponderance in SB 967 is significant because it makes the change a matter of state law, rather than compliance with the Department of Education’s interpretation of Title IX, Cohn said. As things now stand, the federal mandate for preponderance would disappear if a subsequent administration’s Department of Education interpreted Title IX differently. Universities can in principle challenge the current interpretation of Title IX in court, though the stakes are so high that none are likely to do so. If ratified, SB 967 would give the preponderance mandate an independent and a more permanent legal foundation.
Cohn, a critic of SB 967, said the law “further retrenches a bad outcome and bad policy.”
The analogy between civil courts and university disciplinary action, often invoked by supporters, is questionable. It is uniquely damaging to carry the stigma of being declared a rapist. Institutions of higher education should not be able to punish a student as a sexual pariah on the basis of a mere 55 percent confidence in that student’s guilt. Moreover, as a February 13 FIRE statement criticizing an earlier draft of SB 967 noted, university students facing disciplinary action do not have the ability to settle out of court, nor are they guaranteed due process.
The bill’s “affirmative consent” provision gives rise to similar concerns. SB 967 mandates “an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.” The burden is on the initiator to ensure that he or she has consent – so understood – and misunderstanding is ruled out as an acceptable excuse.
“I think the ‘affirmative consent’ standard is particularly problematic because it’s so hard to prove,” Cohn said. He added that the SB 967 “almost ensures that there will be a greater number of students expelled or punished with serious questions as to whether or not that’s fair.”
Proponents of SB 967 emphasize that “affirmative consent” provision is that it will make it easier for victims to come forward with complaints, since investigations will place less significance on the absence of a verbal “no.”
“Instead of trying to figure out ‘did they say no?’ it asks ‘did they consent?’” Conlon said. “It takes the status quo and flips it. The status quo is obviously nor working. It seems stacked against survivors.”
In a similar vein, De León’s press release about SB 967’s passage in the senate described the bill as “changing the equation” so that “only ‘yes’ means ‘yes.’”
These quotes by supporters give the impression that the bill replaces an antiquated, overly permissive conception of “consent” with a carefully calibrated higher standard. An earlier version of the bill literally required a verbal “yes,” but that provision was dropped. Without that provision, it’s not clear that “affirmative consent” amounts to more than a redundancy. Tellingly, neither Cohn nor Conlon could provide an example of a sexual encounter that would be permitted before, but not after, acceptance of “affirmative consent” as the standard for sexual consent.
Despite the nebulous language, both supporters and opponents of SB 967 expect that “affirmative consent” provision will lead to more allegations of sexual misconduct at California universities if the bill is ratified. The absence of due-process protections for the accused on campuses make that a troubling development.
— Spencer Case is a philosophy graduate student at the University of Colorado. He is a U.S. Army veteran of Iraq and Afghanistan and an Egypt Fulbright alumnus.