SACRAMENTO — Democrats routinely accuse Republicans of wanting to put the government into the bedroom whenever they support limits on gay rights. So it's odd that California's Democratic leaders are advancing a bill that would literally insert the state into the most intimate bedroom moments.
S.B. 967 would require all California colleges and universities that accept state financial aid to adopt sexual-behavior policies that include a standard by which students must provide their "affirmative consent" before engaging in a wide range of sexual activity.
And a simple "yes" might not suffice. As a senate analysis explains, the bill "requires consent to be ongoing throughout a sexual activity and authorizes a participant, at any time, to communicate that he/she no longer consents to continuing the sexual activity."
The bill, now in the assembly after passing the senate 27-9, also lowers the bar for on-campus sexual assault punishments to the "preponderance of evidence" standard used in lawsuits. It also requires colleges to provide prevention programs and to make services available for sexual assault victims.
The bill was introduced following serious allegations about inadequate campus responses to sexual assaults, but it has invariably invited ridicule — i.e., lots of bawdy jokes about lawyers and video cameras.
But if this becomes law, the ramifications might not be so funny. The bill essentially turns all sexual behavior into a potential sexual-assault unless there is a clear, affirmative series of "stop and consent" moments. (It seems to have been penned by someone with only a textbook understanding of how such relationships usually unfold.)
There's a big difference between a romantic tryst that lacks the requisite affirmative approvals (and perhaps later results in remorse and recrimination) and an assault where one person proceeds against the other person's will.
"Studies show that people who commit sexual violence are almost always aware that what they are doing is against the will of their victims, rather than the assault being the product of 'blurred' communications," writes Hans Bader, an attorney with the conservative Competitive Enterprise Institute, and a vocal critic of the bill.
Bader argued that only the worst sort of consensual sexual encounters typically involve pre-sexual negotiations — like those between prostitutes and their clients, where one party wants the encounter and the other "puts up with it to obtain money or other benefits."
"By codifying the use of the 'preponderance of the evidence' standard in campus sexual assault hearings, S.B. 967 erodes a crucial due-process protection for students accused of serious criminal conduct," argues the civil-libertarian Foundation for Individual Rights in Education (FIRE).
By contrast, John Manly, a Newport Beach attorney who represents sexual-assault victims in colleges and elsewhere, likes the lower standard given that it's not for a prosecution, but to remove a potential predator from campus. But most of the bill is about political posturing, he adds, given that it does nothing about university administrators who may mishandle and cover up allegations of sexual abuse on campus.
For instance, 40 students at the University of California-Berkeley allege in three recent federal lawsuits that the university discouraged them from filing sexual-abuse charges, under-reported such claims to the federal government, and treated their situation with indifference.
The right law, Manly adds, would halt state funds to any colleges that systemically covered up such abuses, but he doesn't think legislators have the courage to take on powerful lobbies. The state has still not enacted a law making it easier to remove sexual predators from K-12 schools two years after a horrific case in a Los Angeles elementary school. And that's a more clear-cut matter than this one.
So, instead of confronting the problem directly, critics say the legislature is advancing a bill that blurs the distinction between an assault and consensual sex and is likely to lead to more confusion and allegations about some decidely intimate moments. This bill may be hypocritical, but that may be the least of its problems.