Sex with the State

This article originally appeared in the Fall 2014 print issue of the Swarthmore Independent.

By Eric Yao

A new sexual revolution is looming in America—a movement to criminalize innocent lovers. California’s “Yes Means Yes” affirmative consent, bill signed into law by Governor Jerry Brown in late September, requires postsecondary institutions that receive state funds for student financial aid to adopt a sexual assault policy of affirmative consent and a preponderance of the evidence standard for campus adjudications, among other things. SB 967 defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity” that “must be ongoing throughout a sexual activity and can be revoked at any time.”

Preponderance of the evidence is a legal standard that is met if a proposition is more likely to be true than not—just greater than a 50 percent chance. Organizations as varied as Families Advocating for Campus Equality, the Foundation for Individual Rights in Education, the Los Angeles Times, the New Republic, the Reason Foundation, and Stop Abusive and Violent Environments have denounced SB 967 as illiberal. Though mainly supported by feminists and progressives, affirmative consent legislation, a noble idea gone rogue, fails on philosophic, legal, and constitutional grounds.

Obviously yes means yes and no means no, but in many situations, neither an explicit yes nor an explicit no is given—yet the interaction is entirely consensual and enjoyable for both parties. It is undeniable that the concept of tacit consent is a common reality on college campuses and elsewhere. Sex being a lived experience, there are myriad instances in which consensual sexual encounters do not include verbal or written consent. Perhaps lovers in a relationship have previously agreed to accept initiations of sex in order to please their partners, are involved in BDSM or reluctance fantasies, wake up their partners regularly with oral sex, or simply prefer quiet, sensual intercourse. The gray area of consent should be left to individual partners to decide in each personalized occasion, not to legislators drawing up a blanket ban. When asked how students can prove they received affirmative consent, Assemblywoman Bonnie Lowenthal, the bill’s co-author, replied, “Your guess is as good as mine.”

The next mistake of affirmative consent legislation is the requirement that consent be ongoing and its unintended consequences. Ongoing means continuing, still in progress, and unfinished. Applied to sex, the question is how often partners need to recertify consent. Is the time frame each minute or every few moments? The answer is that nobody, not even the law’s authors, knows for sure. But what will the law do to deter true rapists? It most likely will do nothing. The tiny minority that has set their minds to assault does not care about obtaining consent, explicit or tacit. And if a person has already premeditated rape, then that person will just lie to claim that consent was obtained. Legislation that does not help solve the problem it purportedly addresses and that has unintended consequences which harm innocent people is bad legislation.

SB 967’s codification of a preponderance of the evidence standard for campus adjudications diminishes due process for students. Preponderance of the evidence is the lowest legal burden of proof and is used in most civil cases. But federal courts provide many procedural safeguards that are not usually present in campus tribunals. These due process protections include objective, knowledgeable, and professional judges, a jury of peers, the right to legal counsel, exclusion of hearsay and criminal history as evidence, and testimony under oath, among other things.

The next question is whether campus adjudications parallel civil or criminal trials. Campus disciplinary hearings are more akin to criminal trials because they adjudicate felonies such as sexual assault and rape (hardly misdemeanors), cannot be resolved through settlement, and are punitive rather than remedial. Though campus tribunals, unlike courts, cannot send students to prison, unfairly convicted persons are still seriously injured. Conviction will expel them from college, may prevent them from reentering higher education, disqualify them from obtaining professional licenses or securing employment proportionate to their skills, and ultimately destroy their reputations and careers. The American justice system is built on the principle of innocent until proven guilty, and that principle applies even to those accused of sexual assault. Lacking basic procedural safeguards, college proceedings should use a more stringent burden of proof such as clear and convincing evidence. SB 967 weakens a crucial due process protection that is often times the only shield between scholarship and stigma.

Affirmative consent legislation also generates a practical problem before college judiciary committees: how to prove consent. If verbal consent is in question, then accused and complainant will engage in “he said, she said,” and make it difficult to reach a verdict. If written consent is in question, then the simple text message, email, or note will not suffice as ample proof. Lovers might need to produce a signed, notarized contract detailing the provisions agreed to of each sexual encounter. Even that may not be enough, for a partner could contend that he or she did give contractual consent but later withdrew it during or after the sexual acts. Perhaps the true answer would be for students to record video of all sexual encounters and playback before committees to demonstrate consent. Then students’ privacy should be considered—college judiciary committees are usually composed of students, faculty, staff, and deans. Students attempting to prove guilt and maintain innocence will invariably need to explain specific details of their sexual activity to ensure that consent was or was not present at every stage. Campus proceedings on gray areas of consent will not be decided in a straightforward way but will expose the private lives of students to people who should not inquire. Legal pragmatism is yet another reason to oppose affirmative consent legislation.

The first student to be prosecuted as a result of the California law’s passage will undoubtedly appeal on the grounds that the law is unconstitutional. Affirmative consent legislation is difficult to reconcile with the Fourteenth Amendment’s Equal Protection Clause. The California law uses gender-neutral language, but its supporters assume that perpetrators are lustful males and victims are passive females. If male students successfully charge females with sexual assault when females do not ask for and receive affirmative consent, then those who supported the law will call for its repeal. Though unprecedented, male students might prevail with the argument that a facially neutral law which discriminates on the basis of sex during enforcement denies them the equal protection of the laws. At best, the California law will be invalidated; at worst, students of all genders will preemptively and frivolously race to administrators to report sexual assault after a regretful hookup.

Another curious feature of the California law is that it divides the adult population of the state into two categories, those in higher education and those outside. Obviously academic status is not a suspect classification and thus does not constitute an Equal Protection challenge. However, were the law amended to apply to everyone above the age of consent in the state, legislators who supported the bill will have sexually assaulted their husbands and wives when they kiss them goodbye without explicit permission.

Affirmative consent legislation is a crime against liberty. The First Amendment is where affirmative consent legislation definitely does not pass muster. The speech of lovers before and during sex is protected under the imminent lawless action standard established in Brandenburg v. Ohio (1969). Supporters of California’s law might argue that it does not prohibit speech but rather the absence of speech. But the right to not speak is also protected under the First Amendment. Just as West Virginia v. Barnette (1943) ruled that public schools could not force students to salute the flag and recite the Pledge of Allegiance, courts will rule that public universities cannot force students to express their consent in a standardized way. The law’s regulation of private, adult, noncommercial, and consensual sexual relationships also collides with freedom of intimate association, the personal liberty to enter and maintain intimate human relationships. The law makes the partners of college men and women rapists if they do not give an ongoing verbal or written yes, in effect criminalizing many healthy relationships. Such arbitrary regulation violates the First Amendment’s freedom of expression.

Finally, the central tenet of affirmative consent legislation, the regulation of sex, violates the Due Process Clause and/or the Privileges or Immunities Clause of the Fourteenth Amendment. Courts rely on substantive due process to protect unenumerated rights, from the right to seek abortion until viability to the right to marry persons of another race or the same sex to the right to engage in private intimate conduct. As Justice Anthony Kennedy wrote in Planned Parenthood v. Casey (1992) and Lawrence v. Texas (2003), “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. […] Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person […] These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Surely the right to define the mystery of human life extends to one’s freedom to determine how he or she consents to and engages in sexual activity. Individual liberty ultimately means the right of people to exert control over their own sexualities and self-ownership of their bodies, to be free in the enjoyment of all their faculties. Affirmative consent legislation, which burdens the freedom of college students, is an invalid exercise of legislative power.

Society should teach people to ask for and receive unambiguous consent before a fresh sexual encounter. But the idea of education is liberal; the force of legislation, the opposite. Legislators might have wanted to send a message by passing SB 967; however, expanding the definition of rape hurts many innocent students. Supporters of SB 967 should instead lobby Congress to repeal the National Minimum Drinking Age Act so that states can freely lower their drinking ages and lobby states to provide more resources to law enforcement for handling sexual assault reports and testing evidence collection kits. These actions will reduce binge and blackout drinking, a key factor in sexual assault cases, and help provide victims of sexual assault the support and redress they deserve.

The irony is that progressives and feminists who support SB 967 once opposed abortion prohibition, wanting government out of the bedroom. If affirmative consent legislation spreads to more states, then the tyranny of government will expand unprecedentedly. Feminists and progressives who truly believe in equality and reason must join with civil libertarians to eject government from the dorm room.

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