And here's where I fisk
the bill:
An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity.
And...how do they determine that?
“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity.
If a partner initiates, and the other partner does not say, "No," can't that be interpreted as consent?
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.
Good grief. Isn't that awkward?
Lack of protest or resistance does not mean consent, nor does silence mean consent.
Because silence is not communication?
Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.
Wow. That's even more of a mood killer.
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.
But, it shouldn't be an indicator of lack of consent before the law, either.
Of course a prior relationship could provide doubt about a rape claim, but how dare we give the defendant an advantage.
(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:
Blah, blah, blah. Legalese transition...
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused
If you're responsible enough to drink, you're responsible enough for the consequences. So far, this is the only part of the law that isn't actually stupid.
(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.
And...who defines a "reasonable" step? Is it a signed and notarized ten page contract and power of attorney?
(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.
So, what happens if you have a "He said, she said" type of situation? What happens if both parties have the same version of events except for the consent and the lack of consent. If both parties have equal credibility, then who gets the benefit of the doubt?
(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:
More sweet legalese transition...
(A) The complainant was asleep or unconscious.
Gee. Roofies are bad. Who'da thunk it?
(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.
Gee. Isn't using roofies part of the definition of rape?
(C) The complainant was unable to communicate due to a mental or physical condition.
Gee. That could also be part of the definition of rape.
Can't colleges expel people for rape?
(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:
Don't people have the right to face their accuser as part of due process and to cross examine the accuser and any witnesses as part of due process?
(1) A policy statement on how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality.
So, they can expel people for being sexual predators, but they can't actually tell anyone they expelled a person for being a sexual predator?
(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.
In a case like this, shouldn't they, you know, call the police to report a crime?
(3) Response to stranger and nonstranger sexual assault.
Hey. Guess what. That's a crime. Call the police to investigate.
(4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview, as appropriate.
Shouldn't that be the responsibility of people who conduct such interviews. You know, the police?
(5) Contacting and interviewing the accused.
Hey. Sounds like a job for the police.
(6) Seeking the identification and location of witnesses.
This, I could perhaps understand.
(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.
Shouldn't this be step (1) since sexual assault is, you know, a crime?
(8) Participation of victim advocates and other supporting people.
This is a good step, but, should be left to the police.
(9) Investigating allegations that alcohol or drugs were involved in the incident.
Whiz quiz for everyone!
(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.
So...who determines whether or not something is egregious?
Hopefully not the people who came up with a law about handling crimes that leaves actually contacting the people who fight crime until step 7.
(12) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.
Hopefully they tell them it's a crime and that the should report it to the police.
(13) Procedures for confidential reporting by victims and third parties.
Gee. Because anonymous tips haven't gone horribly wrong.