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Bill would shift burden of proof in campus rape cases

By
From page A2 | June 08, 2014 |

By Melody Gutierrez

SACRAMENTO — California lawmakers want to take the onus of preventing rape off victims by requiring that college students looking to hook up prove they had the green light.

The “affirmed consent” standard — already in place at many universities — could be required at all publicly funded California colleges and universities under a proposed state law being considered by the Legislature.

The move comes as women’s groups — joined by President Obama — have expressed outrage at the lax way college officials across the country have responded to reports of rape on their campuses.

But some say that requiring each partner to explicitly agree to have sex, known as “affirmed consent,” goes too far into people’s bedrooms and unfairly limits due process rights of the accused.

”The only thing this does is decrease the number of men on campus,” said Professor Gordon Finley of Florida International University, a critic of affirmative consent policies. “How do you prove affirmative consent? It’s inherently impossible to prove. It’s so far removed from everyone’s sex lives.”

California lawmakers are considering legislation that would require state colleges and universities to adopt anti-sexual-assault policies that include the affirmed consent standard.

Affirmed consent is defined as an “unambiguous and conscious decision by each participant to engage in a mutually agreed upon sexual activity” with the consent ongoing throughout.

The proposed bill, SB967, says that “lack of protest or resistance does not mean consent, nor does silence,” and it’s the responsibility of the person initiating sex to ensure the other person consents.

The bill by state Sens. Kevin de Leon, D-Los Angeles, and Hannah-Beth Jackson, D-Santa Barbara, passed the Senate and is being considered by the Assembly.

”This bill makes a strong statement that California is moving from a culture of acceptance to a ‘no excuses’ culture,” Jackson said. “No excuses for rape … and no excuses for colleges and universities turning a blind eye to the problem of campus sexual assault and violence.”

The federal Clery Act and Title IX specify how colleges and universities are required to respond and disclose sexual assault crimes. But more students are coming forward to say their claims were not properly investigated or punishment was insufficient to nonexistent.

A group of students from University of California campuses pushed California lawmakers to authorize an audit to look at how certain UC and California State University campuses handle sexual assault cases. That audit is due this month.

”I think we have a huge problem in this country when statistics show one in five women will be sexually assaulted in college,” said Sofie Karasek, a 20-year-old UC Berkeley student. “Whatever action needs to be taken has to be bold. The culture has to change.”

Karasek said her school mishandled a sexual assault complaint she filed against a fellow student. Karasek said that after filing the complaint, school officials did not respond for seven months. She eventually received a short e-mail saying the man she accused had been found in violation of the code of conduct, but she said the disciplinary action was far too light.

”They really had no interest in disciplining him,” Karasek said.

In February, Karasek and 30 students and alumni filed a Title IX complaint against UC Berkeley for “systematically mishandling sexual assault cases.”

Kendall Anderson, 20, said she hopes the new bill will help change the way society views rape by changing what constitutes consent. Anderson, a student at Mills College in Oakland, reported being raped on campus in September by a man who was not a student. She said the trauma of the rape was worsened when she felt city police focused only on whether she had done enough to stop the assault. No charges were filed in her case.

”I think (the bill) has the potential to revolutionize the way society views rape,” Anderson said. “It places less burden of proof on the victim. If someone is robbed, is the robbery OK if the person didn’t explicitly say no? That’s how our society views sex crimes.”

But that pendulum swing has Joe Cohn, policy director at the Foundation for Individual Rights in Education, concerned. Cohn said he is worried that affirmed consent policies diminish due process protections for students accused of sex crimes.

”It’s clear that there are schools that have swept accusations under the carpet probably because in their determination it was bad publicity for them, while other schools view it as a headache,” Cohn said. “We are concerned that both of those situations are unethical and illegal. Then there are schools wanting to do the right thing, but have no competency to do that.”

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