Oct 212014

Why One Male College Student Abandoned Affirmative Consent

Conor Friedersdorf
October 20, 2014

After I asked college students and recent grads to comment on California’s affirmative-consent law, several different respondents shared a controversial perspective best captured in the email below. The male writer reports that he began college determined to ask women for explicit verbal consent during sexual encounters, but abandoned that approach over time.

Here is his explanation of why:

Dear Conor,

I am a recent graduate, and want to share with you a few of my experiences that I think are illustrative of why the new affirmative-consent laws are out of touch with the reality of the human experience. I hope they can be of some value to the debate.

I was raised by a left-leaning, feminist family who (at least I thought at the time) were relatively open about sex. But while I arrived at college with a healthy respect for women, I was totally unprepared for the complex realities of female sexuality.

“Oh,” sighed one platonic female friend after we had just watched Harrison Ford grab Alison Doody and kiss her is Indiana Jones and the Last Crusade, “Why don’t guys do that kind of thing anymore? Now days they are all too scared.”

On our second night together, one of my first partners threw up her hands in disgust. “How am I supposed to get turned on when you keep asking for permission for everything like a little boy?” She said. “Just take me and fuck me already.”

She didn’t stay with me for long.

This would be a recurring theme. More than once I saw disappointment in the eyes of women when I didn’t fulfill the leadership role they wanted me to perform in the bedroom. I realized that women don’t just desire men, they desire men’s desire―and often they don’t want to have to ask for it. I also realized that I was in many ways ashamed of my own sexual desire as a man, and that this was not healthy.

At this point I was experiencing some cognitive dissonance with my upbringing, but in time learned to take an assertive lead unless I got a “no” or otherwise thought I was about to cross a boundary as indicated by body language.

One night I ended up back in a girl’s room after a first date (those do happen in college). She had invited me in and was clearly attracted to me. We were kissing on her bed, outer layers of clothing removed, but when my hands wandered downward she said, “No, wait.” I waited. She began kissing me again, passionately, so again I moved to remove her underwear. “Stop,” she said, “this is too fast.” I stopped.

“That’s fine,” I said. I kissed her again and left soon after, looking forward to seeing her again.

But my text messages received only cold, vaguely angry replies, and then silence. I was rather confused. Only many weeks later did I find out the truth from one of her close friends: “She really wanted you, but you didn’t make it happen. She was pretty upset that you didn’t really want her.”

“Why didn’t she just say so then, why did she say we were moving too fast?”

“Of course she said that, you dumbass. She didn’t want you to think she was a slut.”

Talk about confusing. Apparently in this case even no didn’t mean no. It wasn’t the last time I’ve come across “token resistance” that is intended to be overcome either. But that’s a line that I am still uncomfortable with testing, for obvious reasons.

But I have learned not to ask when it clearly isn’t necessary, or desired.

One of my fondest sexual experiences started with making eye contact across a room, moved to a dance floor, and then to an empty bathroom. Not a single word was ever spoken, because none had to be. We both knew and understood. I was a man and she was a woman, and we found ourselves drawn together in that beautiful way that men and women have been since a time immemorial, a time long before language was ever spoken.

Today in California this would be considered rape. I find that very sad. Women are not infantile. They can make their own decisions about sex, and that includes being able to say no―even if they don’t want to have to say yes.



The experiences that this young man had will resonate with some readers. Others will find his descriptions unreliable or his conclusions wrongheaded. Agree or disagree with him, this much is clear: If his attitude persists among a significant number of college students, it will be a huge obstacle to spreading affirmative-consent culture.

How might different supporters of affirmative consent respond to this young man? They might say:

Under an affirmative-consent standard, consent need not be verbal. Depending on the details, it’s possible that your “saw her across the room” hookup was fine.
Perhaps women supposedly put off by your attempts to seek consent were actually reacting to a lack of confidence or wimpy manner, not consent-seeking itself, which can be sought in a confident, assertive, charismatic manner.
Some women may put off by explicit consent-seeking, but others are turned on by it. And even if some subset of women dislike explicit consent-seeking, that doesn’t mean the standard should be abandoned, even if it does “cost” men some hookups, as if society should care about that when it adopts norms. This will reduce rape and sexual assault, a benefit that is much more significant than the trivial cost of a 22-year-old guy not having sex quite as often, or 22-year-old women who can no longer offer “token resistance” and get laid.
The idea that women offer “token resistance” enables rapists and other sex criminals and should not affect consent-seeking. (The writer seems to agree in part when he notes that he is “still uncomfortable” testing “token resistance.”)
I’d be curious to see a frank debate between this young man and critics of his position. (Would anyone be persuaded to refine their position or learn how to better persuade their critics?) But the sensitivity of the subject, the understandable aversion most people have to speaking on-the-record about their past sexual encounters, and the way both politically correct stigma and misogynistic threats are used to police discourse on this subject make it less likely that college men who feels this way will have open, rigorous on-campus exchanges with those whose perspective is different.

My hope is that emails from students and recent grads about any aspect of the affirmative-consent debate will air a broad spectrum of views and facilitate frank exchanges. If you have thoughts or insights informed by what you’ve seen or experienced, please share, anonymously or not, by emailing conor@theatlantic.com.

Source: http://www.theatlantic.com/politics/archive/2014/10/why-a-college-student-abandoned-affirmative-consent/381650/2/

Oct 202014

In Rules on Campus Sexual Violence, Education Dept. Emphasizes Training

Max Lewontin
October 20, 2014

New federal rules issued on Monday aim to make campuses safer by requiring colleges to train students and employees on preventing sexual assault, dating violence, domestic violence, and stalking. The rules also include new categories for identifying hate crimes (gender identity and national origin) and specify that students can choose advisers, including lawyers, to accompany them in campus disciplinary proceedings.

“These regulatory changes provide new tools to improve campus safety,” Arne Duncan, the secretary of education, told reporters on Friday.

One advocate called the new rules momentous. They represent “the most significant change in campus-sexual-assault policy in 20 years,” said S. Daniel Carter, director of the 32 National Campus Safety Initiative of the VTV Family Outreach Foundation, a group representing survivors and victims of the mass shooting at Virginia Tech in 2007.

The U.S. Department of Education published the rules in Monday’s Federal Register. They interpret the Violence Against Women Act signed last year by President Obama and amending the campus-crime law known as the Clery Act. After the Education Department issued proposed rules, in June, that it drew from the consensus of an expert panel of negotiators, it considered public comments and made some minor changes, such as requiring colleges to disclose “unfounded” reports of sexual assault.

The final regulations come as colleges, under pressure from activists and government officials, are grappling with their legal responsibility to investigate and respond to students’ reports of sexual violence. The Education Department is now investigating more than 80 colleges for possible violations of gender-equity law involving alleged sexual misconduct, and federal and state lawmakers have introduced legislation to improve colleges’ response to the issue.

The rules will take effect in July 2015. Until then, colleges are expected to make a “good-faith effort” to comply, the department said.

The Chronicle spoke with advocates, experts, and higher-education officials about the impact of the new rules on colleges regarding sexual assault.

What are the main requirements of colleges?

Colleges are required to provide training to faculty and staff members as well as students. The training must clearly define terms such as “consent” and outline campus policies on sexual misconduct.

The goal is to improve transparency on how institutions handle students’ reports, said Lisa Maatz, vice president for government relations at the American Association of University Women. The regulations, she said, “make it really clear that each school has to talk about each step of the disciplinary proceedings.” That’s important for students who report assaults as well as the accused, she said.

In addition to collecting a wider range of campus-crime statistics, colleges must publicly report the number of sexual assaults that the campus police and other law-enforcement officials have determined to be “unfounded.” Previously, such incidents were excluded from campus-crime statistics.

The term comes from the Federal Bureau of Investigation, which holds that crimes found to be “false and baseless” by law-enforcement officials should be excluded from official tallies of reported crimes, said Mr. Carter. But under the new regulations, those reports will be counted in a separate category. That does not mean, Mr. Carter cautioned, that cases in which an accused student is found not responsible belong in that category.

How much of this are campuses doing already?

It varies by institution, said Connie L. Best, a professor at the Medical University of South Carolina who directs the National Crime Victims Research and Treatment Center. “Some are better at policies, but not so much in training,” said Ms. Best, who was one of the negotiators on the Education Department’s rule-making panel.

“At least now everybody knows kind of what the marching orders are,” she added.

Draft regulations and settlements between the department and colleges under investigation had given some hints, especially with respect to training. “Smart institutions, once they saw the handwriting on the wall, started making these changes early this year,” said Ms. Maatz.

What does it mean that students can now have “advisers” in campus hearings?

The provision allows both alleged victims and accused perpetrators to choose a lawyer, family member, campus official, or other advocate to appear with them throughout disciplinary proceedings. Amid much scrutiny of how colleges handle sexual-assault cases, advocates for both parties see the change as a significant milestone.

The interests of students in these cases, as well as the interests of colleges, are different, said Laura L. Dunn, a self-identified survivor of sexual assault and advocate for victims who also served as a negotiator on the department’s rule-making committee. “The school does have a dog in the fight—they’re worried about liability on either side,” she said. “So it really is important for there to be independent advisers.”

While a student can choose his or her own adviser, the college can limit that person’s participation in campus proceedings.

That was a compromise after the rule-making panel turned briefly contentious, as negotiators representing colleges argued against the presence of advisers, who they said would alter the process. Dana Scaduto, general counsel at Dickinson College and a former president of the National Association of College and University Attorneys, called allowing advisers “the single most problematic provision” in the rules, not least because some students could afford lawyers, and others could not.

What isn’t in the regulations that advocates are still discussing?

In a move that disappointed some advocates of victims’ rights, the regulations remain vague on what standard of evidence colleges should use in deciding sexual-assault cases. The Education Department has issued guidance that colleges should use the “preponderance of the evidence” standard, or more likely than not, rather than the stricter “beyond a reasonable doubt” criteria. But the new regulations do not specify a burden of proof.

The rules also do not define consent, as some advocates had hoped. Affirmative consent—often described as “yes means yes” rather than “no means no”—is now the legal definition on campuses in California, and many other colleges have recently adopted it.

A Campus Sex-Assault Primer
Looking to understand the campus sexual-assault issue? Click to view a shareable brief.

Ms. Dunn would have wanted the department to specify how students found responsible for sexual assault would be penalized by colleges, she said.

Joe Cohn, legal and policy director at the Foundation for Individual Rights in Education, which has advocated for due-process protections for accused students, worried about how the regulations define “stalking.” The definition, he said, removes the idea that offenders must have an intent to deliberately stalk victims that is present in other definitions of “stalking” as a crime.

What happens between now and July, when the regulations take effect?

Campuses will probably move toward compliance. “Many institutions have already begun conducting various types of training,” said Ada Meloy, general counsel at the American Council on Education.

“Every college wants to have as clean a record as possible with regards to sexual assault, and institutions are endeavoring to carry out the regulations,” she said.

Pressure runs high when more than 80 colleges are under federal investigation for possible violations of the law. “I hope that when they are audited or reviewed by the Department of Education,” said Ms. Meloy, “that those good-faith efforts will be recognized.”

Source: http://chronicle.com/article/In-Rules-on-Campus-Sexual/149521/

Oct 202014

The Argument Against Affirmative Consent Laws Gets Voxjacked

Cathy Young
October 15, 2014

Two days ago, Ezra Klein, the editor of Vox.com, penned what may be the most repulsive article yet on the subject of affirmative consent laws. Klein’s argument in a nutshell: yes, these laws are overbroad and will probably result in innocent men being expelled from college over ambiguous charges. Which is good, because the college rape crisis is so terrible and the need to change the norms of sexual behavior is so urgent that this requires a brutal and ugly response. Or, as Joe Stalin was fond of saying, “When you chop wood, chips must fly.” That’s the Russian equivalent of “You can’t make an omelette without breaking eggs.”

Toward the end, Klein writes:

Then there’s the true nightmare scenario: completely false accusations of rape by someone who did offer consent, but now wants to take it back. I don’t want to say these kinds of false accusations never happen, because they do happen, and they’re awful. But they happen very, very rarely.

I only just found out, from this column by James Taranto, that the link in this passage goes to my recent piece on Slate XX.

The whole point of which was to rebut the idea that false accusations of rape are so infinitesimally rare that they needn’t be a serious factor in deciding whether laws dealing with sexual assault are unfair to the accused.

I repeat.

I wrote a piece (extensively fact-checked, I might add) arguing that wrongful accusations of rape (either deliberately false or based on alcohol-impaired memory and mixed signals) are not quite as rare as anti-rape activists claim, and that we need to stop using their alleged rarity to justify undermining the presumption of innocence in sexual assault cases.

And Ezra Klein cites this very piece in an article that justifies, pretty much, throwing the presumption of innocence out the window.

Is there a word for having one’s writing hijacked to support (in an egregiously misleading way) the very point you are arguing against?

I suggest “voxjacking.”

Source: http://reason.com/blog/2014/10/15/the-argument-against-affirmative-consent

Oct 202014

Tally of federal probes of colleges on sexual violence grows 50 percent since May

Nick Anderson
October 19, 2014

The number of federal investigations into how colleges handle sexual violence reports has jumped 50 percent in the past six months, reflecting a surge of recent discrimination claims and the difficulty of resolving high-profile cases that often drag on for years.

On May 1, the Education Department’s Office for Civil Rights released the first public list of colleges and universities under scrutiny for possible violations of federal law in their responses to sexual violence allegations.

At the time, 59 cases were pending at 55 schools. As of this week, 89 cases are pending at 85 schools. Eight cases are more than three years old, including one focused on the University of Virginia, one on Harvard Law School and one on Princeton University.

The rapidly rising total poses challenges for the Obama administration as it seeks to lead a national campaign against sexual assault on college campuses. The students whose complaints sparked many of the cases are anxious for federal action, while colleges want to escape a list that puts an unflattering question mark next to their brand name.

Catherine E. Lhamon, assistant education secretary for civil rights, said more students are turning to her office, known as OCR, for help as they have become aware that the government is willing to intervene to guarantee fair treatment.

List: Sexual violence investigations
“The list is growing partly because we’ve told people we will be there for them,” Lhamon said. “And there’s value in coming to us. I’m really pleased that people trust us — and hope to earn that trust.”

Some higher education officials wonder why the government can’t accelerate. “At some point, that list will be so big it will be meaningless,” said an official at one West Coast school who spoke on the condition of anonymity because the school is under federal investigation.

Lhamon said OCR’s staff has shrunk — to 544 full-time positions this year from 619 in 2011 — as its workload has grown. Its mandate is to prevent discrimination on the basis of race, ethnicity, age, disability or gender in federally funded schools. Sexual violence issues at colleges account for a small share of the agency’s cases.

Lhamon, who took office in August 2013, said she wants, as often as possible, to resolve investigations within six months. “I have made it a priority to close out our old cases as quickly as we can,” she said.

But since May 1, just two schools have dropped off the sexual-violence investigation list.

In June, OCR closed a six-month probe of the State University of New York at Binghamton because it determined that the issues at hand were covered through a previous accord with the SUNY system. In September, OCR resolved a four-year-old case at Ohio State University after investigators found that written policies and procedures for responding to reports of sexual violence and harassment did not follow requirements of the anti-discrimination law known as Title IX.

Schools under OCR scrutiny are generally loath to say anything about the cases beyond affirming cooperation with the government. Officials at U-Va., Harvard and Princeton declined to discuss the longevity of inquiries into their schools. The U-Va. case began in June 2011. The Harvard Law and Princeton inquiries date to December 2010. (A separate investigation of Harvard College, the main undergraduate unit of the university, began six months ago.)

Harvard and Princeton this year announced new policies on sexual violence, which could clear the way for ending their OCR investigations. But 28 current and retired members of the Harvard Law faculty have criticized the university’s action, saying it failed to provide due process protections to accused students.

“Harvard apparently decided simply to defer to the demands of certain federal administrative officials, rather than exercise independent judgment about the kind of sexual harassment policy that would be consistent with law and with the needs of our students and the larger university community,” the professors charged Tuesday in an opinion column published in the Boston Globe.

The university said its policy provides “an expert, neutral, fair, and objective mechanism for investigating sexual misconduct cases involving students.”

Much of OCR’s power stems from its authority to halt federal funding to colleges found to be in violation of the law. But the agency has never taken that step.

Instead, OCR uses the financial threat as leverage to negotiate measures schools will take to improve their sexual violence policies whenever the agency finds shortcomings. Those negotiations are sometimes prolonged.

The schools under investigation represent a broad swath of higher education: a community college district in California, a state university system in Alaska, two professional schools, several liberal arts colleges and dozens of public and private universities.

Catholic University is under scrutiny in the District. Listed from Maryland are Johns Hopkins University, Frostburg State University and Morgan State University. In addition to U-Va., Virginia schools on the list are James Madison University, the College of William and Mary, the University of Richmond and Virginia Military Institute.

Investigations can begin in two ways: through a complaint from an individual or through a government decision to examine records and policies in what is called a “compliance review.”

Interviews with officials at four of the 85 schools on the list — all speaking on the condition of anonymity because their cases are pending — cast light on how investigations proceed. First, a regional unit of OCR notifies a school of a new case. Then, it makes a substantial request for records and information. It might summarize an allegation from an individual, if there is one, and ask for the school’s version of what happened. The request typically seeks records on sexual violence incidents for the previous three years, as well as information on the school’s protocol for response and discipline.

There might be phone calls between the school and OCR to hone or clarify the request. All of this can take several weeks. “It’s a lot of time. A lot, a lot of time,” said the West Coast school official. “We produce so much material. They’re going to look at all your policies, all your practices.”

Eventually, OCR schedules a visit. This can occur several months after the investigation begins. Focus groups are organized to talk with OCR about issues related to sexual harassment and violence. The groups might be drawn from faculty, staff, student-athletes, resident assistants, fraternity members, sorority members and campus organizations.

Schools must give public notice of the OCR visit, disclosing information on how to contact investigators. One official at an East Coast school under investigation said the school was not allowed to observe OCR’s meetings with focus groups or other community members. “We have no idea what they’re going to be told, who is telling it, who may have a biased or skewed version of the facts,” the official said.

Sometimes, OCR makes multiple campus visits. Afterward, schools wait as the inquiry continues. At some point, the regional unit of OCR sends preliminary findings to Washington. Final determinations and settlements come from headquarters. Some school officials complain that they are not likely to be shown any draft findings before they are made public.

In April, Tufts University rebelled. The prestigious university in Massachusetts had reached an agreement for measures to resolve a long-running OCR investigation. Then, it abruptly revoked its approval, objecting to certain findings that the university failed to comply with the law in its handling of sexual assault and harassment complaints.

Federal officials warned the standoff could lead to an unprecedented cutoff of funding for Tufts. A few weeks later, the university relented and gave renewed approval to the resolution. The episode offered a rare public glimpse of the brinkmanship behind these investigations.

An official at another East Coast school under investigation said the school simply wants to cooperate and move forward, as fast as possible. “Right now, we’re just sort of hanging,” he said, “waiting for them to tell us what needs to change, what doesn’t need to change.”

Source: http://www.washingtonpost.com/local/education/tally-of-federal-probes-of-colleges-on-sexual-violence-grows-50-percent-since-may/2014/10/19/b253f02e-54aa-11e4-809b-8cc0a295c773_story.html

Oct 202014

‘Yes Means Yes’ Laws also Hurt Women

Ashe Schow
October 16, 2014

A lack of due process in “yes means yes” — or “affirmative consent” — laws, which seek to define how college men and women engage in sexual activities, isn’t just harmful to men.

Under the recently passed California consent law, colleges and universities have to be just 50.01 percent sure that accusers are telling the truth in order to brand the accused rapists and possibly expel them from school. This “preponderance of evidence” standard can be decided without allowing the accused legal representation or the ability to cross-examine their accusers and witnesses.

Thus far, the focus among critics has been on how this disregard for the Fifth and Sixth Amendments — the basic tenets of the criminal justice system — hurts men, as they are the most likely to be on the receiving end of such treatment. But what isn’t being discussed is the fact that these laws have the potential to hurt women as well.

The laws do not explicitly say that “victims” are all women or that the accused are all men. It couldn’t. Currently, the focus — whether from the Obama administration’s “Dear Colleague” letter or feminist activists — has been on men being the perpetrators. But writing a law to that effect would have caused some serious civil rights violations.

Proponents of the law, such as Vox’s Ezra Klein, note that it is simply a “rare” scenario for an innocent man to be falsely accused, but believe such cases are “necessary” for the law to ultimately work.

Putting aside the fact that this would require defining up to 10 percent of accusations as “rare,” the important point is that this law fosters an increase in such accusations. When the “preponderance of evidence” standard means that the accuser’s story just has to be slightly more believable than the accused, and due process rights are ignored, the attention this law has received (from proponents and opponents) has made it known enough to be a problem.

But here’s a potential scenario the law could create that no one’s talking about: What happens when young men, fearing they will be falsely accused by women they’ve slept with (even if they think that ever-important trust has been achieved), start pre-emptively accusing women of sexual assault because, as the law stands, a man has just as much a right to accuse as a woman?

Usually, men who accuse women of rape are subject to ridicule and portrayed as weak, but a 2012 study published in the American Psychological Association found that 19 to 31 percent of male college students reported experiencing unwanted sexual contact, according to a reading of the study from Pacific-Standard Magazine, a social-science news website. The study’s researchers, according to Pacific-Standard, claimed the vast majority of that unwanted contact was from women.

And what happens if a man counter-accuses a woman who says she couldn’t give consent because she was too drunk by claiming that he was also too drunk to give consent? Should one of these scenarios occur (and I predict they will as those horror stories Klein admonished permeate college campuses), the law would either have to give the man equal credibility or admit the law is inherently biased.

Of course, such a wash could make the law invalid, as the “he said, she said” defense would crumble when both parties had an equal claim to sexual assault.

A third scenario, involving an accusation between a lesbian couple, is also a possibility. And if you think that same-sex sexual assault doesn’t occur, consider this study from the Wisconsin Coalition Against Sexual Assault, which linked to several studies showing anywhere between 5 percent and 57 percent of lesbians reporting they had experienced “attempted or completed sexual assault or rape by another woman.”

Studies have shown that men are far less likely to report sexual assault than women, but with a law like this, where the choice could be between seeing their futures ruined by an accusation or coming forward with an accusation — young men would likely choose the latter option.

If the law remains as it is written, then women would become just as disadvantaged. If, as opponents predict, the law leads to an increase of accusations, anyone accused — man or woman — would be hurt by the lack of basic due process rights.

Source: http://m.washingtonexaminer.com/yes-means-yes-laws-also-hurt-women/article/2554871

Oct 202014

The Underside of “Affirmative Consent”

Masha Gershman
October 19, 2014

Two college students lie on a dorm room bed, there are soft whispers and light touching, but escalating passions are abruptly interrupted when one student hands the other a sexual consent form. The students’ lawyers, suddenly revealed to be sitting on either side of the bed, dive into heated negotiations over what sexual activities will and will not transpire that evening. That comical video was produced in 2004, but it may seem less absurd now than it did a decade ago.

California’s “Affirmative Consent” bill, signed into law by Gov. Jerry Brown last month, sets a new, strict framework for how college students can engage in sexual activity. According to the bill, it is the responsibility of all parties involved to seek either verbal or nonverbal consent. According to Jessica Pride, a sexual assault lawyer, verbal consent can be a simple yes, or an “uhuh.” Nonverbal can include nodding one’s head or removing one’s clothes. That’s a fairly standard understanding of consent. But the bill also requires that consent be ongoing, and specifies that it can be revoked at any time, marking a departure from traditional practice. Barring incapacitation or force, courts typically follow a “no means no” standard, meaning that if one person tries a sexual move that his partner doesn’t appreciate, it is the partner’s obligation to make that known. And then his immediate responsibility to stop.

“Affirmative consent requires that you get consent before you do something….So if one [partner] touches another, and the other person says ‘I’m not in the mood,’ they’ve already committed sexual assault,” says Joe Cohn, Legislative and Policy Director for the Foundation for Individual Rights in Education (FIRE). “If you don’t ask before you do the next thing, you’ve already violated the rule.” In other words, when two college students engage in sexual activity, any change within that activity—a change of position or rhythm for example, behavior that tends to progress naturally—must now first be granted permission. Otherwise, whoever initiated the change could technically face assault claims.

The bill also states that intoxication automatically prevents people from being able to grant consent, regardless if they do so verbally or otherwise. But the definition of intoxication is vague, and the way schools and individuals perceive it varies. Generally, it hinges on incapacitation, namely, whether or not an individual can appreciate what’s happening to him or her. According to Cohn, incapacitation can include if someone is “totally wasted, drugged against their will, hit on the head with a brick” or is underage. Pride defines the threshold as whether an individual can get behind the wheel of a car and drive. Elena Koukina, a graduate student at the University of California Berkeley, says that at a recent workshop, the line of intoxication was described as, “if that question even arises in your mind then they’re too drunk.”

Let’s not forget, however, that this law applies to colleges, where the reality is that a lot of students get drunk, and a lot of students have sex when they do. According to Pride, alcohol has been a factor in most of her cases. So if intoxication precludes the possibility of consent, and if the threshold of intoxication varies, then many students can potentially find themselves in dangerous territory. Supporters of the bill, like Sarah Green, Title IX officer at Gonzaga University, believe that it eliminates ambiguity and serves to educate students about appropriate sexual interactions. “It opens the dialogue more and it gives a real framework for what appropriate sexual relationships should be. And you don’t get the ambiguous, ‘well, she didn’t say no so it was consent,’” Green says. Dianne Klein, Assistant Media Relations Director at the University of California Office of the President, says that the UC system adopted the affirmative consent standard before the bill was passed in order to “educate students and faculty and staff on their responsibilities. And [to] encourage survivors to report [what happened to them] because it provides clear definitions, and allows them to judge whether what happened to them was sexual assault.”

But it seems that the bill has the potential to generate much more confusion, and create many more problems than the ones it eliminates. Cynthia Garrett is an attorney who lobbied against the bill. According to her, the “revoked at any time” clause can be especially problematic: “This bill doesn’t require any protest, or a victim to say no. The consent has to be ongoing and can be revoked at any time. What if she revokes it in the middle of the act and doesn’t have to say anything—how is he supposed to know?” Most cases will be, like those of decades past, matters of “he said, she said.” What is new, however, is that the burden of proof will fall on the accused, usually a male student. It becomes his responsibility to demonstrate that he received consent, a nearly impossible feat, and without the right to the presumption of innocence afforded in criminal courts.

Here’s where the feds come in. When a claim is raised on college campuses, it will be handled by the procedure outlined in a 2011 edict issued by the Department of Justice’s Office of Civil Rights (OCR). It not only obligates universities to independently handle cases of sexual misconduct, but also prescribes how these investigations and deliberations must be run. Campus tribunals are expected to use the “preponderance of evidence” standard, the lowest possible burden of proof, normally reserved for civil matters involving money or property. In other words, a student would have to be shown “more likely than not” to have committed the crime in order to be found guilty.

The edict also all but eradicates due process. Hearsay counts as evidence. Cross-examination of the accuser is barred, for fear of traumatizing him or her further. While in some schools a lawyer or advocate for each student is permitted to be present, he or she is usually not allowed to speak. “Even in civil law you have protections for lower standards of proof, physical evidence, cross-examination. Cross-examination isn’t to intimidate somebody, it’s to allow a jury or a judge to assess their demeanor. That’s a factor in determining truth,” says Garrett. “There are expert witnesses, criminal psychologists who are experienced in this. [Lawyers] question each juror to make sure they’ll be unbiased before they sit on the jury,” she continues. “There is all kinds of overlay to ensure that a person is presumed innocent until proven guilty.”

On college campuses, cases are investigated by campus police, Title IX officers, and faculty members. But it’s unclear whether they are properly trained to perform such investigations. Green says that Title IX representatives at her university receive training from various presenters on the law’s requirements. According to Klein, the UC system offers extensive training, including “what constitutes as a violation of policy, and how [to] deal with somebody who’s been traumatized.” But those involved in the investigation aren’t judges, lawyers, criminal investigators, or specialists in sexual assault. “You’re taking these very complex cases, handing them over to someone who got trained for a week and who doesn’t need to use evidence,” Garrett says.

Then there is the question of objectivity. Faculty, Title IX officers, and other representatives of the university also deliberate and issue verdicts. And they are undoubtedly aware of the fact that their employer can lose its federal funding if it is found to have violated Title IX by mishandling a case. They have skin in the game, which jurors never do.

FIRE’s Joe Cohn raises a different issue. While campus proceedings aren’t criminal cases, they do have criminal law implications. According to Cohn, anything a student says during an investigation is admissible against him in a criminal court, which is true for any public statements individuals make. The only exception is when an individual was compelled to make those statements. “Technically speaking, student statements in campus judiciaries aren’t compelled because students can always choose to withdraw from the school and not face the tribunal,” Cohn says. But if they do choose to speak in the tribunal, they face a situation where they are responsible for proving their innocence without the representation of a lawyer and without the protection of due process. “So, practically speaking, students are being forced to waive their 5th amendment rights in order to defend themselves on campus.”

If false accusations are negligible or non-existent, then these gaps in the bill are nothing to worry about. And, as Pride explains in reference to the shift in burden of proof, even if a student is found responsible, the punishment doesn’t mean jail time. “Does it mean that more people will be found guilty? Potentially, but in the worst case they get kicked out of school.” But false accusations do happen, and whatever their number they are not so easily brushed aside. If someone is falsely accused and subsequently expelled, what happens next?

Sherry Warner-Seefeld and Judith Grossman can answer that question. Both women’s sons were falsely accused of sexual misconduct, and both have first-hand experience of the campus tribunal process. Sherry’s son Caleb was a student at the University of North Dakota when charges of sexual assault were brought against him by another student, a woman with whom he’d had a relationship a few months prior. Eleven days later, Caleb sat before a university tribunal, facing the dean and a number of other high-level university administrators. Within a few hours, Caleb was found guilty and immediately expelled. His transcript indicated expulsion due to sexual assault, significantly diminishing his chances of transferring to another university.

Soon after, the local police department opened its own investigation into Caleb’s case and found, three months later, that Caleb’s accuser had falsified her report. A warrant was filed for his accuser’s arrest. She fled to California, and the case remains open. Shortly after the police department’s finding, Warner-Seefeld approached the university to clear her son of the charges against him. The university refused for nearly a year, citing various bureaucratic stipulations. Not until Warner-Seefeld attracted significant publicity did UND comply. Caleb had waited nearly 18 months for his name and transcript to be cleared of a false charge. He never went back to school.

Grossman’s son, whose identity she won’t reveal, was accused of sexual misconduct by an ex-girlfriend, and the alleged incident had occurred three years earlier. Her son received a list of allegations that were so vague as to “render any defense virtually impossible,” she says. Eventually, though he was not granted a finding of innocence, he was not convicted, good fortune which Grossman says is due more to more to her own determination and resources than the competence of those sitting on the tribunal.

This summer, Warner-Seefeld and Grossman launched Families Advocating for Campus Equality (where Garrett sits on the Board of Directors) to raise awareness about developments on college campuses and to provide support for families in situations similar to their own. Warner-Seefeld says she has already received 35 calls from families whose sons were accused—they say falsely—since August. Garrett keeps records of lawsuits brought by students who claim they were falsely accused. She has identified 49 such cases since 2011, and her list is growing.

But the numbers aren’t important. The question is whether the practices that universities have in place are fair, and whether they actually serve to make campuses safer for students. At worst, if an innocent person is found responsible, he or she will be expelled. Pride is right about that. But gaining acceptance to another university, not to mention having access to the kinds of jobs available to those with a college degree, becomes that much more difficult, if not impossible.

The situation is especially dire if a guilty person is (rightly) expelled, Cohn emphasizes. In this case, the perpetrator doesn’t go behind bars but is released back into the world, free to repeat the assault. And the new focus and push towards campus tribunals makes criminal convictions much more difficult. “Prosecutors and police chiefs across the country have told me they have only 72 hours to get a rape kit done….After that period of time all of that physical evidence is gone. [If universities tell students,] “the criminal justice system won’t help you, here’s another avenue,” a number of meritorious claims will be diverted to campus. That is a recipe for guaranteeing that violent predators are on the street.”

But the system of handling claims seems to be permanently embedded in the collegiate framework, and the affirmative consent bill is gaining momentum. Versions are being adopted or proposed in New York, New Hampshire, and New Jersey. Male students might be wise to, quite literally, hang on to their britches.

Source: http://www.the-american-interest.com/articles/2014/10/19/the-underside-of-affirmative-consent/

Oct 192014

Harvard Liberals Hate New Campus Sex Laws

Cathy Young
October 19, 2014

The increasingly contentious debate about the proper response to sexual assault on college campuses took a new turn on Oct. 15, when The Boston Globe ran an op-ed signed by twenty-eight current and retired Harvard Law School professors expressing “strong objections” to the school’s new Sexual Harassment Policy and Procedures. The sharply worded statement not only slammed the university administration for forcing the policy on all of Harvard’s schools without adequate discussion but also charged that the new procedures for handling complaints of sexual misconduct “lack the most basic elements of fairness and due process [and] are overwhelmingly stacked against the accused.” It even went so far as to urge Harvard to defy federal guidelines on addressing such complaints and “stand up for principle in the face of funding threats.” This is the latest, and biggest, volley in a mounting revolt against the overreach of government-led initiatives to curb campus rape—coming from unusual suspects.

Thus, the Harvard signatories include not only noted criminal defense attorney Alan Dershowitz, who has long been viewed as right of center in the culture wars, but preeminent African-American law professor and Barack Obama’s mentor Charles Ogletree and several renowned female jurists such as veteran civil rights attorney Nancy Gertner, constitutional scholar Martha Field, and feminist legal theorist Janet Halley. This protest is not easy to dismiss as a right-wing anti-woman backlash.

The Harvard 28 join other liberal and feminist dissenters from the campus anti-rape crusade. Among them is George Washington University law professor John Banzhaf, a public interest attorney who has not only battled the tobacco and food industries but championed women’s rights in major sex discrimination cases, notably the push to force the Citadel military academy to admit women in the late 1980s. (His website boasts that he has been called a “radical feminist.”) In the past several months, Banzhaf has focused much of his attention on what he believes is a massive attack on the rights of students accused of sexual misconduct. The title of one of his press releases speaks for itself: “Illegals at Border Have More Rights Than College Students Accused of Rape.”

Meanwhile, a new California law that requires schools to use an “affirmative consent” standard in cases of alleged sexual misconduct has inspired a groundswell of similar state and local initiatives. (Harvard, so far, has rejected such a policy as too vague.) But it has also drawn objections from people like feminist attorney and author Wendy Kaminer, New York columnist Jonathan Chait, and Nation blogger Michelle Goldberg. The liberal backlash against so-called “Yes Means Yes” laws may have gotten an inadvertent boost from an article penned in its defense by Vox co-founder Ezra Klein. Klein appeared to agree that the legislation was likely to result in unfair punishments—though he later claimed this was a misunderstanding—but argued that it was good precisely because it had the potential to strike “fear and confusion” into men, since the problem of rape was so terrible and pervasive that only “ugly” remedies against it could be effective. It’s hard to think of an argument more blatantly illiberal.

The current debacle has its roots in 2011. In April of that year, even as the White House launched a nationwide awareness campaign on campus sexual assault, the Department of Education’s Office on Civil Rights issued a “Dear Colleague” letter to college and university leaders with guidelines on the proper handling of disciplinary charges of sexual misconduct. Crucially, the letter suggested that the standard in evaluating such charges should be not be “clear and convincing evidence,” which most schools had used until then, but “preponderance of the evidence” (often described as anything more than a 50-50 chance that the accused committed the offense). Other recommendations included not allowing the accused to question the accuser at the hearings; whether the accused could have an attorney present was left to the schools’ discretion, except for the requirement that both parties be treated equally in this regard. While the OCR guidelines were not mandatory, a May 2013 letter issued jointly with the Civil Rights division of the Department of Justice made it clear that failure to follow them could result in loss of federal funding.

“Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”
This coincided with federal investigations into complaints by students at more than 50 colleges who said administrators mishandled reports of sexual assault, and with an upsurge in campus activism demanding punishment for accused offenders. The result, say critics such as Banzhaf, has been a process egregiously skewed against the accused. While in theory the “preponderance” standard still requires giving slight benefit of the doubt to the defendant, in practice this may be neutralized by pressure to believe the complainant. At Stanford, for instance, an investigation by the Foundation for Individual Rights in Education showed—even before the recent reforms promoted by the federal government—that training materials for student “jurors” advised them to be “very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence,” since the vast majority of such claims are true.

In the last few years, there has been a spike in lawsuits against colleges by male defendants in sexual misconduct cases claiming they were denied due process and wrongfully expelled; ironically, many of these lawsuits also allege sex discrimination under Title IX, the same law that requires colleges to investigate reports of sexual assault. In a particularly bizarre case at Occidental College, “John Doe” was expelled over a dorm room encounter with a young woman who was judged incapable of valid consent due to intoxication, even though, in her allegedly incapacitated state, the female student had texted “Doe” to ask if he had a condom and to discuss sneaking out of her dorm and into his, and texted another friend to say that she was about to have sex.

The Occidental case, in which “John Doe” was found responsible for misconduct despite being no less drunk than his accuser, also highlights one of the problems mentioned by the Harvard dissenters: the fact that “rules governing sexual conduct between students both of whom are impaired or incapacitated … are starkly one-sided as between complainants and respondents.” This double standard also seems to be rather flagrantly gender-based—grossly unfair to men and paternalistic toward women.

At Duke, one of the universities being sued for alleged wrongful expulsion, Dean of Students Sue Wasiolek seemed to admit as much at a hearing on the lawsuit last May. When asked if sex between two equally intoxicated students should be regarded as mutual rape, Wasiolek replied, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”

The problems with current campus policies are likely to be exacerbated by so-called “yes means yes” laws and similar rules which already exist on more than 800 campuses.

One sign of trouble is that, as progressive blogger Fredrik deBoer notes, supporters of this standard don’t seem to be able to agree on what it means. Some think it mandates verbal consent and communication, preferably not just once but throughout a sexual encounter, and will revolutionize the way we approach sex and consent. Others say that it does no more than codify the simple decency of only having sex with a person who indicates that she or he is willing to have sex, and that nonverbal cues and body language will do.

Defenders of “affirmative consent,” such as Suffolk University sociologist Susan Sered, note approvingly that the legislation “removes the onus from potential victims to unequivocally convey and prove refusal … and places the onus on potential perpetrators to ensure active consent.” But this seems to be another way of saying that “yes means yes” shifts the burden of proof to the accused, which fundamentally conflicts with the presumption of innocence. And how could an accused person prove affirmative consent, especially of the nonverbal variety? When asked about this during the debates on the California bill, one of its sponsors, Democratic Assemblywoman Bonnie Lowenthal, told a newspaper, “Your guess is as good as mine.” For civil libertarians, this should not be an encouraging answer.

Klein, like some other supporters of the legislation, argues that concerns about the presumption of innocence and the constitutional rights of accused are misplaced since “college hearings do not carry the full guarantee of due process that, say, criminal legal proceedings do.” Yet he also admits that courts have held that students in university hearings are entitled to “basic due process protections,” though the level of such protections is determined “on a case-by-case basis.” It would seem reasonable that, in cases involving an accusation of non-consensual sex—something that would be a felony in the criminal justice system—the need for due process rights would be considered fairly high. Moreover, Kaminer makes a persuasive argument that “assaults on the fundamental presumption of innocence and due process in rape cases that begin on campus are unlikely to end there.” If sexual consent comes to be equated with explicit verbal agreement in college proceedings, lesser protections for victims in real courts will seem unjustifiable.

There is little doubt that some victims of rape on campus get a raw deal, especially in cases involving popular athletes in schools where sports reign supreme. But it’s far from clear that laws and policies which employ broad and confusing definitions of sexual assault and consent will do anything to address such injustices. What they will do is bring government into the bedroom in a far more literal way than the most aggressive anti-abortion laws.

In the past two years, overzealous efforts to regulate sexual conduct on campus have drawn criticism mainly from conservatives such as George Will. Ironically, in recent days, a couple of conservative commentators—Conn Carroll on Townhall.com and Heather Mac Donald in The Weekly Standard—have expressed qualified sympathy for this campaign as a way to discourage campus sex, restore chivalry, and vindicate the Victorian notion that women need to be protected from male lust. But now, we may finally be seeing a backlash against the new sex police based on fundamental liberal values: concern with the rights of the accused, opposition to government intrusion into the sexual choices of consenting adults, and rejection of benign sexism toward women. It could be a game-changing moment in this debate.

Source: http://www.thedailybeast.com/articles/2014/10/19/harvard-liberals-hate-new-campus-sex-laws.html

Oct 162014

State-Mandated Dirty Talk in California: Governor Signs Unconstitutional SB 967

Hans Bader

October 16, 2014

Last month, California Governor Jerry Brown signed into law a bill regulating college students’ romantic lives, which I discussed earlier. This misleading “affirmative consent” law, SB 967, appears to require “agreement” to each form of “sexual activity” a couple engages in on campus, without defining what “sexual activity” is. In the words of one of its supporters, it thus requires “state-mandated dirty talk” during sexual encounters.  (Some colleges with “affirmative consent” policies classify even ordinary “kissing” as “sexual activity” that can constitute “sexual assault,” notes Ramesh Ponnuru at Bloomberg News, while other colleges define it to include little more than sex and penetration.  Colleges have since adopted rules modeled on SB 967 stating that consent to one form of activity cannot imply consent to any other forms of activity, potentially requiring people to engage in a series of discussions as they move from kissing to foreplay to sex).

This “agreement” requirement is misguided: There are lots of things in this world that I like, and view as consensual, that I never “agree” to, such as when my daughter suddenly hugs me without asking for permission, or my co-workers surprise me by leaving a snack on my desk. “Agreements” are for dry legal contracts, not warm, spontaneous human interactions. But now, you have to reach on “agreement” on everything, which could lead to some very uncomfortable conversations in the bedroom.

Ezra Klein, a former Democratic operative and leading supporter of the new law, says it will define as guilty of sexual assault people who “slip naturally from cuddling to sex” without a series of agreements in between, since

It tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test.

The Yes Means Yes law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value. . . .

If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it. . . . men need to feel a cold spike of fear when they begin a sexual encounter. . . To work, “Yes Means Yes” needs to create a world where men are afraid.

It is simply malicious for the law’s supporters to celebrate such “fear and confusion.”  Not to mention unconstitutional.  It is hard to explain in language fit for a family newspaper what supporters of the law want to require in the bedroom, so I will just quote from a supporter of the law, commenter Sveinbjorn, at New York Mag:

What this really entails is a bit of state-mandated dirty talk, that is all. People will get used to it.  . . .I can think of 50 different ways of getting verbal consent without ruining the mood. None of them are fit to print.

Would you like it if your husband asked you “may I massage your clitoris” or “may I touch your breast” before doing so?  No, chances are you wouldn’t.  When such touching is actually welcome, no possible purpose is served by requiring an “agreement” as well (especially one that is inherently graphic and sexually explicit).  Such explicit discussion can be more discomfiting even than an unwanted touching. One of my female relatives experienced sexual abuse as a minor, and is especially uncomfortable with graphic sexual talk in the bedroom as a result. But people will now be subjected to it whether they like it or not, if their partner wishes to avoid the specter of being classified as guilty of “sexual assault.”  Constitutional privacy rights should forbid such a state-mandated intrusion in the bedroom.

Such “state-mandated dirty talk” should also be recognized as violating the First Amendment freedom from compelled speech, recognized in the Supreme Court’s 1977 Wooley v. Maynard decision.

It also violates the Fourteenth Amendment ban on sexual harassment by state governments, recognized in federal appeals court rulings like Bator v. State of Hawaii and Hayut v. State University of New York, which forbid the government, and state officials, from creating a sexually hostile environment.  It creates a sexually-hostile educational environment for both men and women.  It does so by the admissions of its own supporters like Ezra Klein, by “creating a haze of fear and confusion” and “cold spike of fear” for men.  And it subjects women (and some men) to “unwelcome” verbal “conduct of a sexual nature,” by requiring their partners to quiz them about sexual activity they don’t mind doing but do mind discussing.  (There are any number of things my wife likes doing, but doesn’t want to discuss).  Such state-mandated action is objectionable under the Supreme Court’s decisions in Truax v. Raich and Peterson v. City of Greenville, which make clear that when the government requires a private entity to do something, the resulting action can be constitutionally challenged even when the action would have been perfectly constitutional if done voluntarily without state meddling.

Such sexual harassment and intimidation violate the civil rights laws — even when the victims are male. Thus, a sexual-harassment and “diversity training” seminar that insulted males was ruled by a judge to support a sexual harassment lawsuit in Hartman v. Pena, 914 F.Supp. 225 (N.D. Ill. 1995).  Similarly, state-mandated participation in sexually-oriented activity can constitute sexual harassment even when it is done in the name of preventing sexual abuse.  In the Hartman case, the court found the existence of a “sexually hostile” work environment in violation of federal law based on a training exercise that subjected men to “malehook” in an effort to make them understand what it feels like to be a victim of sexual harassment (much as supporters of California’s “Yes Means Yes” law say it “needs to create a world where mean are afraid” and is designed to make men “feel a cold spike of fear when they begin a sexual encounter”).

Many supporters of the law seem to assume that it will be applied solely against men (even though both men and women touch each other without reaching “agreement” in advance), and that treating men as presumptively guilty when accused is perfectly acceptable.  But stereotyping people as guilty or as sexual harassers or rapists based on their gender is a forbidden form of sex discrimination that itself violates federal law.  For example, a federal appeals court ruled that a man could sue after being disciplined by an employer that stereotyped men as guilty based on their sex.  Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009); see also Yusuf v. Vassar College, 35 F.3d 714 (2d Cir. 1994) (Title IX case); Underwood v. Northwest Health Services, 57 F.Supp.2d 1289, 1303 (M.D. Ala. 1989) (“baseless accusations of racism” supported white employee’s harassment claim under Title VII); Weberg v. Franks, 229 F.3d 514, 524 (6th Cir. 2000) (suspension of white employee by official who admitted he did so based on blacks’ “perceptions,” independent of whether they had merit, to maintain workplace peace, violated Title VII).

In practice, California’s SB 967 thus seemingly runs afoul of, and is preempted by, Title IX.  (I practiced education law for years, including a stint at the Education Department’s Office for Civil Rights handling Title IX and civil rights issues).

In light of the privacy, free-speech, and sexual-harassment problems that can result from SB 967, its regulation of “sexual activity” should be construed as narrowly as possible to encompass only ultimate sex acts, not things like touching someone’s breast. Unlike sex, which is usually a mutual activity reflecting implied agreement, touching is seldom preceded by “agreements” in the real world.  One partner does it to the other, without any prior agreement, because it would likely be welcome.  Dating, and people’s romantic lives, are protected against unwarranted government interference by Constitutional privacy rights, and the freedom of intimate association. See, e.g., Wilson v. Taylor, 733 F.2d 1539, 1542-44 (11th Cir. 1984); Lawrence v. Texas, 539 U.S. 558 (2003). Similarly, what they say, or choose not say, in their bedroom is nobody’s business but their own, and such free-speech considerations weigh against allowing California’s SB 967 to require a whole series of discussions while making out or engaged in foreplay.  See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress”; rejecting agency interpretation of statute and refusing to apply Chevron); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979) (Court would decline to construe an act of Congress “in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religious Clauses”).

Statutes’ reach should be interpreted narrowly to avoid potential constitutional problems.  See, e.g., Bond v. United States, 134 S.Ct. 2077 (2014) (construing statute implementing chemical weapons treaty narrowly to avoid possible federalism problems that would come from the federal government punishing conduct traditionally regulated by state law);  Northwest Austin Municipal Utility District No. 1 v. Holder, 129 S. Ct. 2504, 2513 (2009) (rejecting Justice Department’s interpretation of a civil rights law that would have undermined states’ rights, and construing Voting Rights Act’s reach narrowly to avoid possible constitutional federalism problems); Miller v. Johnson, 515 U. S. 900, 923 (1995) (rejecting Justice Department’s position to avoid possible discrimination as a result). This is especially true when a statute is ambiguous, as sponsors of California’s Yes Means Yes law themselves describe their own statute.  (“In June, a reporter asked one of the bill’s authors how someone would prove that he had gotten affirmative consent.” Her response: “Your guess is as good as mine. I think it’s a legal issue. Like any legal issue, that goes to court.”)

California’s so-called Yes Means Yes law was opposed by the Los Angeles Times, and was criticized for violating privacy and due process rights by the Foundation for Individual Rights in Education, former ACLU Board member Wendy Kaminer, the Orange County Register, columnists Megan McArdle, Cathy Young, Amy Alkon and Ashe Schow, and many, many others.

Source: http://libertyunyielding.com/2014/10/16/state-mandated-dirty-talk-california-governor-signs-unconstitutional-sb-967/


Oct 162014

Vox.com’s Ezra Klein: “Yes Means Yes” Is a Terrible Law–and I Love It!

Charlotte Hays

October 16, 2014

Whenever I am asked if I like Vox.com’s awful Ezra Klein, I reply, “No—and no means no.”

Still, Klein’s commentary on California’s new “yes means yes” law deserves special notice. In it, as James Taranto points out in the Wall Street Journal this morning, Klein manages “to strike a contrarian pose while toeing the politically correct line.”

“Yes means yes” is of course shorthand for California’s new law requiring that kids on campus who decide to do what we used to jokingly refer to as the dastardly deed must give “affirmative consent” at every stage of the act.

Klein’s take on the law is this: “‘Yes means Yes’ is a terrible law, and I completely support it.” In affirming the terrible law, Klein cites the currently much bruited about (by the Obama administration, for example) figure that one in five young women on campus is the victim of sexual assault. The problem is that this number is vastly inflated, based on one flawed study, and the result of advocacy research. But other than that…

Relying on this highly questionable figure, however, Mr. Klein finds value in the draconian, new “yes means yes” regime:

If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it. Because for one in five women to report an attempted or completed sexual assault means that everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.

The Yes Means Yes law could also be called the You Better Be Pretty Damn Sure law. You Better Be Pretty Damn Sure she said yes. You Better Be Pretty Damn Sure she meant to say yes, and wasn’t consenting because she was scared, or high, or too tired of fighting. If you’re one half of a loving, committed relationship, then you probably can Be Pretty Damn Sure. If you’re not, then you better f—-ing ask.

While reserving judgment on “yes means yes,” Taranto notes that for Klein “the affirmative-consent law serves as a synecdoche of the whole rotten system, which he endorses despite (or maybe because) he acknowledges its injustice.”

False accusations against male students? Not to worry. As Taranto noties, “Klein makes clear that he regards unfairness to defendants as, on balance, a benefit.” Here is what Klein writes:

Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases—particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons—that will convince men that they better Be Pretty Damn Sure.

Taranto, by the way, provides ample debunking on the one-in-five stat on which Klein bases his support for “yes means yes,” noting that Klein dismisses the idea that there will be false accusations. (Taranto cites an article by Cathy Young—“Crying Rape”—who spoke on IWF’s panel on the campus “rape culture.”)

Now, while I am amused at so many of us conservatives getting hot and bothered over a law that throws up hurdles to engaging in sexual activity on campus, unlike Klein, I find it hard to take a blasé attitude toward young men whose college careers are ruined by false accusations. “Yes means yes” is the apotheosis of bad law based on bad information.

It is Victorianism (do admit: good) but with a virulent, radical feminist, anti-male twist (bad).

Source: http://www.iwf.org/blog/2795315/Vox.com’s-Ezra-Klein:-%22Yes-Means-Yes%22-Is-a-Terrible-Law–and-I-Love-It!

Oct 162014

Is the Left Losing its Mind Over Campus Sex?

This week has featured a potential tipping point in the debate about due process and campus sexual assault.

The first event came in publication of an extraordinary column by Ezra Klein, defending California’s “affirmative consent” law. In one respect, it wasn’t surprising to see Klein defend the proposal; too many liberal commentators (not to mention, of course, the entire Democratic contingent in the California legislature, plus Governor Jerry Brown) have backed the law. But Klein’s argument was astonishing—he conceded that the law was flawed, even badly flawed, but celebrated the flaws as a virtue. The law will mean that “too much counts as sexual assault” and that innocent students will be branded rapists (though such cases, Klein suggests in a fact-free claim, “very, very rarely” occur). But Klein considered it “necessary” to get more students deemed guilty of rape in “morally ambiguous” situations to convince men in college (but, it seems, not anywhere else) that “they better Be Pretty Damn Sure.”

Klein’s column has triggered a torrent of criticism. The highest-profile came from New York’s Jon Chait, who expressed amazement that Klein was “arguing for false convictions as a conscious strategy in order to strike fear into the innocent,” a “conception of justice totally removed from the liberal tradition.” Amidst an off-base and politically correct interpretation of the lacrosse case, Freddie Deboer challenged Klein from the left, contending that the poor and minorities would be the most victimized by California’s law. James Taranto eviscerated Klein’s argument in the Wall Street Journal. FIRE’s Will Creeley tweeted that he was “completely shocked” by Klein’s column, which borrowed from the “same morally bankrupt justification trotted out for inhuman abuses of power for decades, [the] worst impulses of humanity.”

By committing a Kinsley gaffe—admitting the politically indefensible rationale for a policy—Klein’s column unintentionally served the cause of due process.

But California’s law is only a small part of the war on campus due process. A much more important document, touching on the central issue, appeared Wednesday morning. A letter published in the Boston Globe and co-signed by 28 current and emeritus members of the Harvard Law School faculty asserted that Harvard’s new sexual assault policies “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.” The list of signatories included such high-profile names as Alan Dershowitz, Charles Ogletree, and Nancy Gertner; and in general was hardly a group that leaned to the right.

The specifics of the law professors’ criticism? An absence of meaningful discovery; a structure that makes the Title IX office investigator, judge, jury, prosecutor, and appeals court; a failure to provide “adequate representation for the accused,” especially poorer students; an overly broad definition of sexual harassment; and vague and seemingly arbitrary rules regarding sex while intoxicated.

The most interesting aspect of the law professors’ letter came in its demand that the school stand up to the federal government. The professors lamented that, in violation of principles of academic freedom, “Harvard apparently decided simply to defer to the demands of certain federal administrative officials, rather than exercise independent judgment about the kind of sexual harassment policy that would be consistent with law and with the needs of our students and the larger university community.” Signatories urged the university to withdraw the policy and start anew, while beginning “the challenging project of carefully thinking through what substantive and procedural rules would best balance the complex issues involved in addressing sexual conduct and misconduct in our community.”

And if the OCR followed through on its (empty) threat to withhold federal funds? “Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats.”

A Harvard University spokesperson essentially dismissed the criticism in a statement given to the Crimson. (It’s unlikely this blasé response will suffice; even the anti-due process New York Times ran a story on the law professors’ letter, deigning to mention for the first time the due process lawsuits as well.) Will Harvard’s donors and prominent alumni be satisfied with a policy many of its law faculty have warned “departs dramatically” from basic legal principles, “jettisoning balance and fairness in the rush to appease certain federal administrative officials”? Or will one university finally stand up for due process?

Source: http://www.mindingthecampus.com/2014/10/is-the-left-losing-iits-mind-over-campus-sex/#more-12241