California Legislature Seeks to Codify OCR Sexual Assault Standards

Glenn Ricketts

  • Article
  • June 09, 2014

Last week, we published this compendium of federal source materials that have some bearing on the continuing national uproar over sexual assault on college campuses.  As noted there, the most heated disputes center on the definition and frequency of campus sexual assaults and how best to respond when they occur.  For our part, we’ve been distressed for some time by elusive, protean definitions of “sexual misconduct” and the striking erosion of due process rights for anyone accused of it.  In particular, the new standards mandated several years ago by the DOE’s Office for Civil Rights seem to stack the deck very heavily in the accuser’s corner.

Those troublesome new standards have been embraced with enthusiasm and gusto in California, where a bill seeking to codify them in state law has already cleared the senate.  See this piece from today’s IHE for an overview.   If it passes, all of the worst features of OCR’s requirements will become the law of the state of California, including the “preponderance of evidence” standard of proof, which makes it much easier for campus tribunals to render a guilty verdict.  Read the draft statute’s text here.  But note that the bill’s supporters actually do OCR one better – if that’s the word – by attempting to legislate the precise circumstances under which “informed consent” has been given by both parties to a sexual encounter.  Especially striking, however, is the apparent shift of proof to the accused, if the other participant later levels charge of rape or assault.  In other words, if you get tagged as an assailant, it’s on you to prove that, as the initiator, you had secured the “unambiguous, affirmative” consent of the other party – who, by the way, can also withdraw “consent” at any time during the encounter.  You may wonder how exactly such consent could be demonstrated in court, short of producing a formal, notarized contract.  But that probably wouldn’t protect you either, since your paramour can decide it’s not what she wanted any time thereafter.  Better take a camcorder with you, just to be sure.

And whatever happens with the bill, the Cal State system, which strongly supports it, isn’t waiting.  Last week, Chancellor Timothy White signed an executive order revising existing policies to bring them in conformity with the  bill’s language.

Looks as if individual campuses will need to come up with a standard “sexual consent” form.  Can a Dean of Sexual Affairs be far off?   Unfortunately, that isn’t a joke.

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