Liberal e femministe si ribellano alla legge ammazza-sesso nei campus della California

Letto 2551 volte

28 10 2014

Una gran parte dei liberal e delle femministe americane si ribella – giustamente! – contro la legge appena varata dallo Stato della California, che nei campus studenteschi consente di equiparare a stupro i rapporti sessuali senza nessuna violenza o minaccia ma che non si siano svolti con un consenso esplicitamente dichiarato e reiterato durante tutte le fasi del rapporto stesso (carta bollata o carta semplice?). Un esempio plateale di come un obiettivo sacrosanto (combattere la violenza sessuale) venga perseguito con mezzi assurdi.
Qui di seguito alcuni articoli tratti da "New Republic", "The Nation" (la più importante e diffusa testata della sinistra americana) e da "Atlantic" che ha realizzato una inchiesta fra gli studenti. Seguono una lettera dei professori di Harvard contro le nuove direttive dell'università sulla violenza sessuale e il testo della legge in questione.

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'Affirmative Consent' Is Bad for women

di Batya Ungar-Sargon, New Republic

Laws governing sexual conduct are about to change for the worse. With 20 percent of female students reporting sexual-assault incidents, California's State Senate recently passed legislation to target the crime on campuses. Bill 967, which passed unanimously and is also known as the "yes means yes" law, stipulates that colleges will receive state funding only if they adopt certain policies regarding sexual assault, chief among them being “an affirmative consent standard.” For sexual activity to be lawful, "affirmative, conscious, and voluntary agreement" must be given. The bill goes on to assert that "Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time."

In other words, in order for sex to be lawful, both parties must acknowledge verbally and continuously that they are indeed in the mood for love (the word “verbal” was removed from the bill, but it seems impossible to satisfy the conditions nonverbally). If no used to mean no, under Bill 967, an absence of yes now means no, too.

This recent legislation reflects a growing trend to criticize our current sexual culture as one which condones sexual assault, a crisis often referred to as “rape culture.” Some of the criticism is valid, but, by and large, this new discourse renders women as either receivers of, or victims in, the phallic pursuit of sexual satisfaction. These measures and the discourse which invigorates them ratify a double standard into law and have the potential to pervert justice.

Many of Bill 967’s standards are important, for example, the insistence that "the existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent," or the bill’s canny note that "Intoxication and sleep may not be taken as signals of consent." Indeed.

But the bill is more problematic than powerful. Even beyond the problems of implementation (you still have the same he said/she said problem), the bill formalizes troubling arguments about gender and consent. For example, by redefining rape as any act that happens without “affirmative consent,” it dangerously expands the category of sexual assault to include consensual acts that take place in the absence of “affirmative agreement.” The new bill decouples consent from desire—you must speak your desire for it to count. The bill thereby determines by fiat that, should a complaint arise, the conditions for expressing desire were not coherent enough to imply consent. In this way, it is similar to the laws criminalizing statutory rape: Whether or not a 15-year-old girl or boy wanted to have sex with an 18 year old is immaterial; she or he ise not deemed old enough for consent to matter. While a child’s desire may be immaterial to his or her ability to consent, it is patronizing, infantilizing, and even dehumanizing to apply this metric to college-aged women.

Furthermore, it’s a long way from saying that the fact of an existing relationship does not imply consent, to saying that even within an existing relationship, verbal consent must be given. Must two married college students verbally consent to each other? The law stipulates the rather awkward condition that affirmative consent must be “ongoing throughout a sexual activity.” Must a couple stop at every stage to reaffirm their consent?

But there is a larger problem at stake in Bill 967. It is an argument of definition: A failure to procure “affirmative agreement” means that sexual assault has taken place. If that is the case, absent such affirmative signifiers, how exactly do you know whom to arrest? Let’s say the woman brings a complaint; hasn’t she also technically raped her male partner, according to the new bill? Of course not, critics will argue. His consent was visible; sex couldn’t have happened without his consent, they will say. But here lies the crux: while male desire is deemed equivalent to “affirmative consent," female desire is not. A double standard is actually ratified into law whereby the phallus represents true, unmediated desire, while female desire must be interpolated through words. While the law must protect women from the inequality of force men have at their disposal, what is the utility of demanding that women require an extra level of mediation to signal desire, under conditions where no imbalance exists?

Herein we find one of the most outrageous part of the bill: Its assumption of men as the initiators of sex acts, and women as their recipients. This is certainly how the New York Times views the bill, in two separate op-eds. In discussing its usefulness, the Times states, “The new standard won’t convince young men intent on getting their way—a vast majority of assailants are men—to back down, especially if alcohol is in the picture, as it often is. It could, however, improve how colleges handle accusations.” But data suggests that most college rapes are perpetrated by a small minority of students, rather than a vast group of assailants. In response to the same task force that instigated Bill 967, RAINN (the Rape, Abuse, and Incest National Network) sent a letter to the White House Task Force to Protect Students from Sexual Assault, in which they found that a mere 3 percent of men committed over 90 percent of college rapes (there is no reliable research on female college perpetrators). And yet California’s law governs every college student’s encounters. A different method entirely is required to deal with an epidemic of rapes perpetrated by a small percentage of repeat rapists than would be required to treat an epidemic of rapists.

In the Times’ second op-ed on the subject, Gloria Steinem and Michael Kimmel predicted that the bill is “bound to raise howls of protest from opponents of women’s equality.” Next they quote a howler who they seem to believe is at least a potential rapist. “Of course some guys on campus were against it, in an honest way,” Steinen and Kimmel write, and then quote a student quoted in a 1993 article: “’If I have to ask those questions, I won’t get what I want,’ blurted out one young man to a reporter. Bingo,” Steinem and Kimmel conclude righteously.

There is something decidedly bad for women in turning this gray zone into a black one, both as far as feminism and equality is concerned, as well as in terms of the reality of sex. Much of what we call courtship—and the pleasures therein—revolves around sending, reading, interpreting, and changing these signals. Surely a misunderstanding should be judged under the law differently than an outright desire to harm. Surely we are all guilty of trying to convince people to have sex with us. Are we rapists? Surely, we have all enjoyed a little drunken cavorting. According to Bill 967, if we did this while college students in California, we are sexual assailants. The fact that no one accused us of rape does not mitigate the bill’s claim that sexual assault was perpetrated.

In RAINN’s letter to the White House Task Force, the organization argued in favor of changing the discourse surrounding “rape culture”: “In the last few years, there has been an unfortunate trend towards blaming ‘rape culture’ for the extensive problem of sexual violence on campuses. While it is helpful to point out the systemic barriers to addressing the problem, it is important to not lose sight of a simple fact: Rape is caused not by cultural factors but by the conscious decisions, of a small percentage of the community, to commit a violent crime. While that may seem an obvious point, it has tended to get lost in recent debates.”

RAINN was accused of succumbing to rape culture in making this argument. Supporters of Bill 967 will probably also argue that if the bill saves one woman from rape, or results in the successful prosecution of even one rapist, it will be worth the price paid. But this logic would never work in another legal context, and a legal system that works is one that distinguishes between mistakes and the intentional infliction of harm. It’s a broken legal system that calls all these things wrong, and leaves those trying to achieve justice to deal with the mess. The law proposes to declare a large swatch of normal activity criminal (drinking before sex, reading/sending signs instead of verbalizing request/consent). No legal system should be able to justify such actions without some proof of benefit.

Solving the problem of college campus sexual assault is a crucial imperative facing our society, but over-legislating sex is a path destined for failure.

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Questions About California’s New Campus Rape Law

di Michelle Goldberg, da The Nation

I’ve been reading everything I can find about California’s new affirmative consent law, and I still can’t quite figure out how it’s going to work in practice. The law, which Governor Jerry Brown signed yesterday, requires colleges in the state to adopt what’s sometimes called the “yes means yes” standard for sexual assault, meaning that a person’s silence or passivity in the face of sexual advances cannot be taken as consent.

As the law’s supporters describe it, it’s simple common sense, ensuring that rapists won’t be exonerated because their victims were too intoxicated, or immobilized with fear or shame, to articulately refuse. As its opponents see it, it’s a retread of the infamous Antioch College rules from the 1990s, requiring awkward and explicit agreement for every touch, every time, and thus branding a great deal of ordinary consensual sex as assault.

Reading the text of the law doesn’t clarify matters. It’s true that, contrary to some reports, it makes allowances for non-verbal assent. “You may have heard of this bill as the one that would require students to draft up a written sex contract before bed or constantly proclaim ‘yes, yes, yes!’ at every slight readjustment, thereby practically redefining most sex as rape,” wrote Slate’s Amanda Hess, before explaining that this is not in fact the case. But the law is vague about what legitimate non-verbal consent—the kind that, I’d wager, governs most sexual relationships—might look like.

“’Affirmative consent’ means affirmative, conscious, and voluntary agreement to engage in sexual activity,” the law says. “It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.”

Now, most of us know what this kind of consent looks like in practice, but as a legal standard, it’s hard to imagine how it would be implemented. Do moans count as consent? How about a nod, or a smile, or meaningful eye contact? If a woman performs oral sex on a man without asking him first, and if he simply lies back and lets her, has she, by the law’s definition, assaulted him?

The law might force couples into dialogue about their desires—obviously a good thing—but it’s hard to see how that alone will address rape. It is, after all, a right-wing canard that acquaintance rape cases tend to stem from misunderstanding rather than predation. Research at one campus by the scholars David Lisak and Paul M. Miller shows that most rapists are serial offenders who have committed other acts of violence as well. “This portrait is more consistent with the data on recidivism among sex offenders than with the still-prevalent image of a male college student who, under the influence of alcohol, mistakenly crosses the line between sexual pressure and rape,” they write. Yet California’s law treats the campus rape crisis as a communication problem, even as it blurs the parameters of what sexual assault is.

Some people have argued that it doesn’t really matter if those lines are blurry, because, contrary to what men’s rights activists claim, women have no incentive to abuse the system. (The law is gender neutral, of course, but it’s clearly women who are most likely to be sexually assaulted.) We know that women very rarely lie about rape, and so they’re unlikely to go to authorities if their partners deviate from the letter but not the spirit of the new rules. “If both partners were enthusiastic about the sexual encounter, there will be no reason for anyone to report a rape later,” wrote Tara Culp-Ressler in ThinkProgress. “So if college students are worried about protecting themselves from being penalized, it’s not hard—all they have to do is stick to engaging in physical contact with people who are clearly receptive to it at the time.”

Maybe she’s right. Most of the time, though, progressives are not comfortable with arguments that overly broad laws are OK because we can trust them to be applied judiciously as opposed to literally. This is particularly true when we’re talking about laws legislating speech and sexual behavior. I’m sure we can rely on the vast majority of college students, and particularly college women, to interpret the new rules in good faith. I’m less sure if that’s a good enough argument for a law so vague that, technically, it might turn most of them into rapists, victims or both.

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Sex and the Class of 2020: How Will Hookups Change?

di Conor Friedersdorf, The Atlantic

As California's colleges and universities adjust to a new state law mandating a standard of "affirmative consent" in sexual assault and rape cases—as well as campus judicial proceedings with a "preponderance of the evidence" standard of guilt—observers are trying to anticipate how these policy changes will affect the lived culture of sexual acts among students, most in their late teens or early 20s. The law's effect on campus culture will determine whether it advances the ends sought by supporters, who hope to reduce the incidence of sex crimes. Yet there is broad disagreement about whether and how sexual culture will adapt to the new regime. Even those who agree that the law is good or bad disagree about its likely effects.
What follows are some of the wildly divergent forecasts, some hopeful, others cautionary. Taken together, they illuminate different notions of human nature, the reach of public policy, and what life on California's many college campuses is actually like. The scenarios that they anticipate are not always mutually exclusive.

It Will Be Harder to Get Away With Rape

In the 2008 essay collection Yes Means Yes!: Visions of Female Sexual Power and a World Without Rape, contributor Jill Filipovic captured something very much like what supporters of California law hope sex on campus will look like in the near future.
"Plenty of men are able to grasp the idea that sex should be entered into joyfully and enthusiastically by both partners, and that an absence of 'no' isn't enough—'yes' should be the baseline requirement," she wrote. "And women are not empty vessels to be fucked or not fucked; we're sexual actors who should absolutely have the ability to say yes when we want it, just like men, and should feel safe saying no—even if we've been drinking, even if we've slept with you before, even if we're wearing tight jeans, even if we're naked in bed with you. Anti-rape activists further understand that men need to feel empowered to say no also. If women have the ability to fully and freely say yes, and if we establish a model of enthusiastic consent instead of just 'no means no,' it would be a lot harder for men to get away with rape. It would be a lot harder to argue that there's a 'gray area.' It would be a lot harder to push the idea that 'date rape' is less serious than 'real' rape, that women who are assaulted by acquaintances were probably teases, that what is now called 'date rape' used to just be called seduction."

Sex Will Be Hotter and More Enjoyable

There is a long history, Ann Friedman writes in New York, of young women having sex "that’s consensual but not really much fun," and as long a history "of their male partners walking home the next morning thinking, 'Nailed it.'” She believes that "these droves of sexually dissatisfied young women will be unwitting beneficiaries" of California's new law, because "confirming consent leads to much hotter sex." She doesn't anticipate that the law will thwart rapists, "who clearly don’t care about consent, be it verbal or nonverbal." But she believes that "most young men ... are worried about inadvertently doing something in bed that their partner doesn’t welcome" and "actively thinking about whether their partner is enjoying herself." As a result, they'll now find life "easier for both them and the women they sleep with," because the law "creates a compelling reason for both parties to speak up and talk about what they like. In essence, the new law forces universities—and the rest of us—to acknowledge that women like sex. Especially sex with a partner who wants to talk about what turns them on."

Sex Will Be Scary and Anxiety-Inducing

If implemented as intended, California's affirmative-consent law will intrude on "the most private and intimate of adult acts," Ezra Klein posits. It will settle "like a cold winter on college campuses, throwing everyday sexual practice into doubt," creating "a haze of fear and confusion over what counts as consent" and causing men "to feel a cold spike of fear when they begin a sexual encounter." Meanwhile, "colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) ... for genuinely ambiguous situations" in case that "feel genuinely unclear and maybe even unfair." Klein is a supporter of the law. His followup article on the culture of affirmative consent is worth your while.

Hookup Culture Will Wither Under Neo-Victorianism

Heather MacDonald describes affirmative-consent laws and the activist movement that produced them as "a bizarre hybrid of liberationist and traditionalist values" that "carefully preserves the prerogative of no-strings-attached sex" but adds "legalistic caveats that allow females to revert at will to a stance of offended virtue." She regards the "assumption of transparent contractual intention" to be "laughably out of touch with reality," and believes it implicitly treats women as "so helpless and passive that they should not even be assumed to have the strength or capacity to say 'no'" to stop unwanted sexual encounters, ushering in "a neo-Victorian ethos which makes the male the sole guardian of female safety."
Judging that the policies ushered in by this neo-Victorian ethos misunderstand sex and will take the fun out of it, she tells her fellow conservatives, "What’s not to like? Leave laments about the inhibition of campus sex to Reason magazine." As she sees it, "If one-sided litigation risk results in boys taking a vow of celibacy until graduation, there is simply no loss whatsoever to society and only gain to individual character. Such efforts at self-control were made before, and can be made again."
Another conservative, Conn Carroll, reaches a closely related conclusion. "If you are in a committed relationship there is very little chance each new amorous encounter with your partner will result in hard feelings either way," he declares. "But if you are constantly switching partners, each new pairing is a roll of the dice. You have no idea how each woman will react the next morning. If you sleep around there are simply way more opportunities for things to blow up in your face."

Misogyny on Campus Will Increase

Like supporters of affirmative-consent laws, Ross Douthat of The New York Times doesn't anticipate that disciplinary cases springing from them will be particularly common, at least not enough to affect the behavior of the average student. "It seems very unlikely that any campus policy is suddenly going to make assault allegations commonplace, in a way that would have them intruding frequently into the social life of the typical college-going male," he writes. "Instead, 'yes means yes' will create a kind of black swan situation, where only every once in a while a man gets expelled for rape under highly ambiguous circumstances. And because the injustices or possible injustices will be rare, that 'every once in while' will not actually have much of a deterrent effect on men confronted with an opportunity for a drunken hook-up, in the same way that other very occasional disastrous consequences of binge drinking (e.g., death) seem remote to young men (or young women) who head out to get hammered on a typical Saturday night."

But he isn't arguing that there will be no significant cultural impact. Rather, he believes college males will react sort of like cable news viewers who develop persecution complexes:

It will be a distant-seeming outrage that mostly feeds a sense of grievance and persecution among the men who might (but mostly won’t) suffer unjust treatment at the university’s hands. Which means that rather than being a spur to some sort of reborn chivalry or new-model code of male decency, it will mostly encourage the kind of toxic persecution fantasies that already circulate in the more misogynistic reaches of male culture. See, the feminazis really are out to get us, the argument will go, and in bro lore the stories of men railroaded off campus won’t be seen as cautionary tales; they’ll be seen as war stories, martyrologies (in which even actual, clear-as-day predators are given the benefit of the doubt), the latest battle in the endless struggle between the Animal House gang and Dean Wormer … reincarnated now, in our more egalitarian feminist era, as a castrating Nurse Ratched.

The new standard of consent, in this scenario, will be neither reasonable enough to be embraced as a model nor consistently punitive enough to scare men away from drunken wooing. Instead, it will have a randomness, an arbitrariness, and an occasional absurdity that will encourage a mix of resentment and resistance. As such, it will lock in an aspect of contemporary sexual culture that social conservatives probably don’t talk enough about: The kind of toxic misogyny that feminists rightly call out and critique, but that also exists in a kind of twisted symbiosis with certain aspects of feminist ideology–answering overzealous political correctness with reactionary transgressiveness, bureaucratic pieties with deliberate blasphemy, ideologies of gender with performative machismo.

Sexual Harassment Will Change

Hanna Rosin's Atlantic cover story on sexting among teens includes a passage about what prompts one young person to send a naked photo to another at one high school: "Boys and girls were equally likely to have sent a sext, but girls were much more likely to have been asked to—68 percent had been," she wrote. "Plenty of girls just laugh off the requests. When a boy asked Olivia, who graduated last year from Louisa County High, 'What are you wearing?,' she told me she wrote back, 'Stinky track shorts and my virginity rocks T-shirt.' A boy asked another student for a picture, so she sent him a smiling selfie. 'I didn’t mean your face,' he wrote back, so she sent him one of her foot. But boys can be persistent—like, 20-or-30-texts-in-a-row persistent. 'If we were in a dark room, what would we do?' 'I won’t show it to anyone else.' 'You’re only sending it to me.' 'I’ll delete it right after.'"

Today's male high-schooler pestering a classmates with 30 texts in a row asking to see her boobs is tomorrow's drunk freshman at a UC-Santa Barbara house party. It is conceivable that he will be acculturated into seeking affirmative-consent—and that he will seek it by asking for intercourse or a blow job again and again and again. At what point is he guilty of sexually harassing one or more of his new classmates? I suspect that's an issue campuses will face more frequently as consent-seeking becomes both affirmatively encouraged and more explicit than before. The spirit of the standard would of course preclude pestering one's way to "yes." But we're talking about regime created precisely to address the behavior of young men who'll adhere to the letter of the law or social norm at most. A new standard won't extinguish their impulse to push the limits as far as they can while avoiding punishable acts. Pestering may be their adaptation. And somewhere, sorority girls will arrive at a frat party where, upon entering (if not as a condition) they'll confront men pressuring them to preemptively consent. "This bracelet means you're good to hook up–and it comes with a free shot!"
Will that be tolerated?

Women Will Face Charges More Often Than Expected

Some opponents of California's law have argued that predatory men will "game" the new system by responding to an accusation of sexual assault with a countercharge of their own. Consider a case arising from drunken sex that one party regrets the next day. A college male is informed that charges are being brought against him. "She couldn't give consent? Neither could I. In fact, I felt uncomfortable too—she came to my room, neither asked for nor got a yes, and I was way more drunk." Such a case could present thorny issues for a campus tribunal.

But I'm imagining a different scenario, in which the affirmative-consent regime coincides with a noticeable increase in earnest complaints by men against women. It isn't that I foresee a monumental shift. At the same time, if campus norms about consensual sex change significantly and rapidly, just as traditional taboos against women initiating sex are waning and explicit efforts are made to diminish taboos against reporting sexual assaults, is it possible that a population acculturated to expect men always want sex will make and be called on more misjudgments?

Consider the following passage from the fascinating New York Times Magazine article on Wellesley, a women's college, and the growing number of trans men attending it:

Kaden Mohamed said he felt downright objectified when he returned from summer break last year, after five months of testosterone had lowered his voice, defined his arm muscles and reshaped his torso. It was attention that he had never experienced before he transitioned. But as his body changed, students he didn’t even know would run their hands over his biceps. Once at the school pub, an intoxicated Wellesley woman even grabbed his crotch and that of another trans man.
“It’s this very bizarre reversal of what happens in the real world,” Kaden said. “In the real world, it’s women who get fetishized, catcalled, sexually harassed, grabbed. At Wellesley, it’s trans men who do. If I were to go up to someone I just met and touch her body, I’d get grief from the entire Wellesley community, because they’d say it’s assault — and it is. But for some reason, when it’s done to trans men here, it doesn’t get read the same way. It’s like a free pass, that suddenly it’s O.K. to talk about or touch someone’s body as long as they’re not a woman.”

How would a disciplinary panel at Wellesley react to a trans man charging a woman with sexual assault? How would UC-San Diego's student body react to a straight male bringing charges against a straight female for giving him a blow job when he was very drunk that he regretted the next day—or two weeks later upon realizing that he contracted an STD from the encounter? My guess is that, 10 years hence, such cases will be far from common, but still far more common than they currently are.

Sexual Assault Will Become a Sometimes Less Serious Charge

That isn't to say that all sexual assaults would be treated less seriously in this scenario. Some sex crimes will always strike people as maximally abhorrent and awful. But if a person can technically run afoul of sexual-assault rules by, say, misreading the vibe on a first date, leaning over during the movie, and initiating an unwanted kiss, there will be scenarios on the margin—perhaps not that one exactly, but you get the idea—where observers agree affirmative consent was violated and that some sanction is warranted, but nevertheless feel the incident is different in degree or kind than their bygone notion of what the crime "sexual assault" is.

There are two spins to put on this. On one hand, perhaps it is salutary to maintain undiminished taboos around all rape and sexual assault, preserving clarity about its awfulness, avoiding ignorant tropes like the canard that date rape isn't "as bad" as stranger rape, and conferring maximal opprobrium on those who act sexually without consent. Or perhaps a spectrum of opprobrium would be salutary, as in cases where the victim regards himself or herself as having been wronged, but eschews taking any action because he or she doesn't believe it was sexual assault, or want to be subjected to—or subject someone else to—a sexual-assault case. In some ways, this is similar to the tension between wanting racism to carry a powerful taboo and seeing situations where that very taboo makes it harder to call out and remedy conduct that is mildly racially offensive.

Though some of the foregoing scenarios are of my own creation, I don't have any idea how affirmative-consent laws will actually play out on California's college campuses, how variable the effect will be on different college campuses, or whether the overall change in sexual culture will be salutary, negative, or negligible. By temperament, I tend to worry about unintended consequences more than most, but the legislature has spoken and early results will be in soon enough. I hope to report on campuses and find out how they're working.

It is nevertheless worth thinking through scenarios like the ones above, for the law is very likely to have a mishmash of positive and negative consequences coexisting with one another—and perhaps anticipating potential pitfalls as well as opportunities for worthwhile change can help college students and administrators to steer things in a slightly better direction than they'd float on their own.

With that in mind, I hope current college students (or recent grads) who've made it through the musings of out-of-touch oldsters like me will reflect on their observations and experiences, and then send email articulating how they think affirmative-consent laws will play out (or have played out) on campus. What are commentators who haven't themselves been college students for years or decades missing, or misunderstanding, about sexual culture on campus today or how it will change?

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Why One Male College Student Abandoned Affirmative Consent

di Conor Friedersdorf, The Atlantic

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 Questo indirizzo email è protetto dagli spambots. È necessario abilitare JavaScript per vederlo..

* * *
The Traffic Laws of Sexual Culture

di Conor Friedersdorf, The Atlantic

Yesterday, I shared the thoughts of a recent college grad who gave his reasons for abandoning affirmative consent. As he told it, women were more often frustrated by his deference than appreciative. He was most confounded by a woman who stopped his advances—he quickly listened—only to complain later that he wasn't more persistent. She was offering "token resistance," he thought, because while she wanted to hook up, she didn't want to be thought of as a slut. And while he didn't feel comfortable ignoring "token resistance," his perception of it helped sour him on affirmative consent. "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," he offered by way of comparison. "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."

That perspective is shared by an unknowable number of young men—enough, I think, that it represents an obstacle to spreading affirmative-consent culture. It also elicited some thought-provoking responses from other Atlantic readers.
One offered the young man insights gleaned from kink parties, arguing that what some regard as "natural" aspects of sexual culture are, upon reflection, not natural at all. Rather, they depend largely on the set of basic rules laid down:

I frequently attend kink parties whose rules prescribe affirmative consent for any physical contact. And the one thing I've never seen there is someone putting up token resistance and expecting it to be ignored. Everybody knows the rules, so somebody who says "hey, slow down" when they don't mean it—whether it's because of a reflex, or meant as flirtation (because yes, some people may do that), or any other reason—at least accepts that if they say no, they're responsible for having said it! This is not because everyone there is awesome or even well-intentioned; it's because saying "no" while meaning "yes" just won't work.
Your letter writer seems to fall into the trap of thinking that sexual norms are "natural," and that laws have to fit existing norms. But there's also a "traffic laws" element to sexual norms; declaring how people should interpret certain actions sets the meaning of those actions, even if they didn't have that meaning before.
"Token resistance" is a pretty dumb social norm for all kinds of reasons. You mention (as a possible response to the letter) that one might say some of the people who like it are rapists who appreciate the cover it gives them; while I think that's true, I also think there are plenty of women who expect to face social punishment if they don't follow this norm. My point is, those people are not going to necessarily go without sex if they live under affirmative-consent laws. They're going to say, "Hey, I guess if I say this, I'm not getting laid," and make their choice accordingly. (I think affirmative consent is a very good social norm but probably a terrible law. I hope I'm wrong about the second part.)

A female Stanford student posited that "token resistance" isn't a reason for men to abandon affirmative consent—it is a call to women to do their part to make it work:

This, to me, is exactly why women and men need California's new affirmative-consent law! It changes not just what we expect of men, but what we expect of women.
We are in the middle of a transition ... to a world in which sex is collaborative and wanted. But we haven't yet had the kind of cultural change that causes all individuals to rethink the new burdens that this standard places on them. For men, I think it lifts burdens. Judging by the stories you've shared, it hasn't lifted them yet. And this is where new expectations for women come in. I'm not suggesting that women no longer think sexual leadership is attractive, but that women assert their desires .... Playing a game where saying "no" or "wait" is a ploy to realign one's self-perception as a slut versus a prude merely reinforces the notion that women are two-dimensional Madonnas or Whores, or that women always want it. It's up to women to stop playing this game—to see asking as attractive, or if not, to ask for the more assertive behaviors they want, to see deference as respect, to reject the idea that the only option available to our gender is to wait passively for the act and when unwanted, say no.
I urge others, especially those sympathetic to your experiences, to see this change as a positive one simply because it relieves men's pressure to read minds. It relieves their grasp of all the power in a sexual encounter ... there's a big difference between assertiveness and assault, and it's not up to you alone to tread those waters.

The next correspondent is a somewhat unlikely supporter of California's law:

I am 27 and a recent law-school graduate.
I remember my first semester at law school in criminal law learning about an older study of college coeds at University of Texas. Around 75 percent had reported saying "no" to sex when they intended or wanted to have sex. In college, I rarely made the first move, and hearing this caused me to rethink my strategy. Assertiveness is clearly a desirable quality. Thereafter I began to be more bold but also conscious of body language and other signals. If a partner refuses initially, I pay close attention to whether she said, "I probably shouldn't," or unequivocally, "no." I sometimes test the "no," but will never cross the line to aggressive or pushy.
When I heard about California's new law, I thought back to our discussion of elements of rape and the previously mentioned study. My reaction was that this law is completely removed from the reality of modern dating and sets a potentially ridiculous standard for students to meet. However, I think ultimately it is positive.
Being assertive and recognizing body language are things that took me years to learn. This new standard will encourage partners to be more conscious of those small signals since consent may be nonverbal cues (like leaning in slightly when face to face versus cheating away [a stage term]).
• It will encourage women to be more open and assertive in their sex lives. (It is okay and does not make you a slut to say "yes," and saying "no" when meaning "yes" is confusing.)
• While the reality is that there will not always be explicit consent in adult relationships, college is different. The peer-pressured, alcohol-fueled hook-up culture (I went to Arizona State for undergrad, so not a total exaggeration) warrants greater emphasis on consent, even if that means missing potential hook-ups.
Remember, this is a standard to be implemented in disciplinary hearings, not a criminal statute, and holding college students and administrators to higher standards is understandable given their terrible track record. Students should remember that being assertive and confident does not preclude being respectful.

A male opponent of California's law writes:

If women want to be treated as equals—as they should be and as I do treat them—then it isn't too much to expect them to say "no" or "stop" if they don't like whatever a sexual partner is doing. If they say that one word, even once, it should be totally respected. If a man doesn't listen, that's rape, and he should be thrown in jail for years. But if those are the stakes, years behind bars probably getting raped, or in the current law getting expelled from college and branded a rapist, asking for a simple "no" or "stop" is not too much to ask.
The alternative is that some men will go to jail for misunderstandings or women who changed their minds after the fact. Of course men should ideally avoid even those situations, but how can I take women seriously as strong, independent equals if they infantilize themselves so much that they won't even take responsibility for saying no? If a man is threatening violence if she says no, even nonverbally, that's different. I'd vote for rape in those cases, but the standard should be, were any actions taken that would make a rational actor fear saying no? If not, then it shouldn't be rape even if there wasn't affirmative consent.
A woman explained why she opposes California's law, in part by sharing a harrowing experience:
My junior year of high school, a male "friend" stood between me and the door of an empty classroom. He asked for sex repeatedly, and I had repeatedly said no. When I attempted to leave, he stopped to "hug" me, tightly, and asked again. That time, I felt I could not get out of the room without fighting a fight I would likely not win, or giving up. I said yes—and although the experience left me with what my college psychologist would later call "symptoms of PTSD," under California's law, this would be considered consent ...

Her takeaway:

Requiring women say "yes" to demonstrate consent does nothing to help women for whom that "yes" was coerced or threatened. And women who gave "affirmative consent" under duress would have no legal recourse—their "yes" would be evidence against them.

She objected to "any law that uses a plaintiff's actions (or lack thereof) to determine the defendant's guilt" because it "necessarily places responsibility on the plaintiff to avoid being the victim of a crime—the jury tries the victim's responsibility, rather than the defendant's potential crime." What would she prefer?

The ideal policy would be sort of like a rational basis test for free will ... could the accuser rationally believe the defendant may legitimately harm them if consent is not given? In cases in which consent was not given and the accuser was harmed, the verdict should be obvious. In cases in which consent was given under psychologically questionable circumstances, this test would put pressure on the courts, or other evaluating bodies, to analyze the defendant's actions and the messages said actions could communicate. If these actions could reasonably communicate an intent to harm, then consent was not given freely.

Another woman looks back on college and explains why she didn't like giving affirmative consent:

Women don't want to be labeled sluts. Token resistance lets us dodge that question. I think what has bothered me about being asked for consent is I'm never really sure if I'm into it. So thinking about it makes me confused. I haven't been taught that it is okay to be into a guy, how to recognize if I'm attracted—all those things, I'm only thinking about now. So yeah, asking me if I want to can be difficult for me.

I replied, "If you're not really sure when asked for affirmative consent, do you think that means the standard is a good thing, and that those hookups ought to be stopped, or that it's a bad thing, because despite your uncertainty you want those experiences?"

She answered:

Basically, I think women need to separate sex from morality so that consent is positive and sexy for us, too. Some women can do it now, but those who can't are the ones fueling the idea of "token resistance." Hookups can be a very good thing, but they need to positively and spontaneously affirmed by both parties. Despite my uncertainty, I wanted those experiences, and the guy I was with took the time to verify that. It has been an exploration into how well I know my body, and it has been positive. The yes-means-yes law pushes everyone into that knowledge, because it is essentially the difference in the two ways of presenting the question "Do you want to receive further emails from the company?" when you buy something. Those emails mean more to the people who have to actually check yes, but they reach more people when they're automatically checked. They're just unwanted spam to most of them.
Does that make sense? I'm figuring out my ideas as I type.

A woman supportive of the law writes:

My partner and I don't just look for affirmative consent when interacting sexually, we actually still get verbal consent for a surprising amount of it. Four and a half years together, and we still don't have P-V sex without verbally checking in. The same is usually true for any kind of oral (if I'm leading into it slowly then sometimes I don't ask him, but I'm pretty sure he almost always asks). This isn't because we're scared of prosecution or anything, it's just what we do. It's normal for us. And no, it doesn't interrupt things. Talking about what you want to do to each other isn't what I'd call a turn-off!
To be fair, not everyone is the same as my partner and me, nor should they be. I've seen commentators who argue that the law is trying to dictate how we communicate, and I see why that would be a concern if it were true. I think it would be more true to say that the law is dictating that we communicate, in some way, which doesn't have to be verbal. That seems pretty defensible to me.
I'm receptive to the idea that we need cultural change as much as or more than we need a legal change. The moral principle is easy to articulate, right? Every sexually active person has a moral responsibility to not have sex with anyone who does not want to be having sex with them. Back when I was hooking up with different guys, rather than being in a relationship, I can't say that seemed like an excessively difficult principle. I'm okay with the principle that, in order to keep their college enrollment, students have to make a good faith effort not to have sex with people who don't actively want to be having sex with them.

A professor at a prestigious institution of higher learning in the Northeast writes:

To live or work in academia and openly express that young man’s perspective is to take a risk, especially if you’re a straight male. If you do, you’re practically begging to be made into a negative example. You just have to hope that women who understand the truth that guy is expressing will say it for you. When the sexual-safety-training session takes place—and this goes for male students and instructors alike—it’s best to say whatever the session’s leaders want to hear.
If you push back on their often one-sided and politically driven views of human sexual response, you can easily be branded a conservative, a sexist, a misogynist, or even a potential rapist who needs to be monitored. (Although I hate to confirm a Fox News talking point, “conservative” is indeed a damaging slur at far too many universities.) Those of us who hope to discuss this subject honestly are caught between the psychopaths who tweet misogynist and violent garbage and the Judith Butler wannabes who use all manner of bullying and demagoguery in an attempt to—this is not an overstatement—silence male voices in the academy.

Finally, a female student writes:

In all of my sexual experiences, I have never been asked for permission nor have I had to ask someone for permission. It has been clear and obvious that we were both interested. I have been in experiences that were not consensual. I know what enthusiastic consent looks like because I have not given it before. I don't think that excludes men from knowing what it looks like—they have given enthusiastic consent before. And they have also not given it.
Anonymous seems perplexed … as if by discovering that some women don't like to be asked for permission every step of the way, that means the only alternative is … what? Not clearly defining consent? Not getting laid? Eschewing his feminist upbringing because one woman suggested that she would like to be ravaged? I have never been that confused during sex .... I have never been unsure about what comes next or when it needs to continue or stop. And I don't think that means I am lucky or extra insightful. It means that I am capable of thinking one level deeper than Anonymous appears to be about humans.
Can't I like confident men in the same way that men like confident women? I feel like this sort of this defines the non-problem that Anonymous is bringing up. Confident doesn't mean rapey. Not asking for permission doesn't mean rapey. It is possible to be all of those things—passionate, spontaneous, aggressive, raw–without raping someone, or assaulting someone. I wish I could say I sympathize with Anonymous' confusion on this topic, but I just don't. Perhaps if you can't figure it out, then you just shouldn't be having sex.

More correspondence on this subject is welcome (Questo indirizzo email è protetto dagli spambots. È necessario abilitare JavaScript per vederlo.), but let's move past directly responding to the letter that inspired this string of responses.

* * *

Rethink Harvard’s sexual harassment policy

La lettera dei professori di Harvard contro le nuove direttive dell'università sulla violenza sessuale pubblicata dal Boston Globe

In July, Harvard University announced a new university-wide policy aimed at preventing sexual harassment and sexual violence based on gender, sexual orientation, and gender identity.

The new policy, which applies to all schools within the university and to all Harvard faculty, administrators, and students, sets up the Office for Sexual and Gender-Based Dispute Resolution to process complaints against students. Both the definition of sexual harassment and the procedures for disciplining students are new, with the policy taking effect this academic year. Like many universities across the nation, Harvard acted under pressure imposed by the federal government, which has threatened to withhold funds for universities not complying with its idea of appropriate sexual harassment policy.

In response, 28 members of the Harvard Law School Faculty have issued the following statement:

As members of the faculty of Harvard Law School, we write to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration and the Corporation on all parts of the university, including the law school.

We strongly endorse the importance of protecting our students from sexual misconduct and providing an educational environment free from the sexual and other harassment that can diminish educational opportunity. But we believe that this particular sexual harassment policy adopted by Harvard will do more harm than good.

As teachers responsible for educating our students about due process of law, the substantive law governing discrimination and violence, appropriate administrative decision-making, and the rule of law generally, we find the new sexual harassment policy inconsistent with many of the most basic principles we teach. We also find the process by which this policy was decided and imposed on all parts of the university inconsistent with the finest traditions of Harvard University, of faculty governance, and of academic freedom.

Among our many concerns are the following:

Harvard has adopted procedures for deciding cases of alleged sexual misconduct which 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. Here our concerns include but are not limited to the following:

■ The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.

■ The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.

■ The failure to ensure adequate representation for the accused, particularly for students unable to afford representation.

Harvard has inappropriately expanded the scope of forbidden conduct, including by:

■ Adopting a definition of sexual harassment that goes significantly beyond Title IX and Title VII law.

■ Adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.

Harvard has pursued a process in arriving at its new sexual harassment policy which violates its own finest traditions of academic freedom and faculty governance, including by the following:

■ 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.

■ Harvard failed to engage a broad group of faculty from its different schools, including the law school, in the development of the new sexual harassment policy. And Harvard imposed its new sexual harassment policy on all the schools by fiat without any adequate opportunity for consultation by the relevant faculties.

■ Harvard undermined and effectively destroyed the individual schools’ traditional authority to decide discipline for their own students. The sexual harassment policy’s provision purporting to leave the schools with decision-making authority over discipline is negated by the university’s insistence that its Title IX compliance office’s report be totally binding with respect to fact findings and violation decisions.

We call on the university to withdraw this sexual harassment policy and begin 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.

The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment. The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom. The law that the Supreme Court and lower federal courts have developed under Title IX and Title VII attempts to balance all these important interests. The university’s sexual harassment policy departs dramatically from these legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials.

We recognize that large amounts of federal funding may ultimately be at stake. But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats. The issues at stake are vitally important to our students, faculties, and entire community.

Elizabeth Bartholet
Scott Brewer
Robert Clark
Alan Dershowitz, Emeritus
Christine Desan
Charles Donahue
Einer Elhauge
Allen Ferrell
Martha Field
Jesse Fried
Nancy Gertner
Janet Halley
Bruce Hay
Philip Heymann
David Kennedy
Duncan Kennedy
Robert Mnookin
Charles Nesson
Charles Ogletree
Richard Parker
Mark Ramseyer
David Rosenberg
Lewis Sargentich
David Shapiro, Emeritus
Henry Steiner, Emeritus
Jeannie Suk
Lucie White
David Wilkins

* * *
Student safety: sexual assaulte - Il testo della legge

Senate Bill No. 967

An act to add Section 67386 to the Education Code, relating to student safety.

[ Approved by Governor September 28, 2014. Filed with Secretary of State September 28, 2014. ]


SB 967, De León. Student safety: sexual assault.
Existing law requires the governing boards of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions to adopt and implement written procedures or protocols to ensure that students, faculty, and staff who are victims of sexual assault on the grounds or facilities of their institutions receive treatment and information, including a description of on-campus and off-campus resources.
This bill would require the governing boards of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions, in order to receive state funds for student financial assistance, to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking that include certain elements, including an affirmative consent standard in the determination of whether consent was given by a complainant. The bill would require these governing boards to adopt certain sexual assault policies and protocols, as specified, and would require the governing boards, to the extent feasible, to enter into memoranda of understanding or other agreements or collaborative partnerships with on-campus and community-based organizations to refer students for assistance or make services available to students. The bill would also require the governing boards to implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence, and stalking. By requiring community college districts to adopt or modify certain policies and protocols, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES
Bill Text
The people of the State of California do enact as follows:

Section 67386 is added to the Education Code, to read:

(a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:
(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(A) The complainant was asleep or unconscious.
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
(C) The complainant was unable to communicate due to a mental or physical condition.
(b) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards. At a minimum, the policies and protocols shall cover all of the following:
(1) A policy statement on how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality.
(2) Initial response by the institution’s personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.
(3) Response to stranger and nonstranger sexual assault.
(4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview, as appropriate.
(5) Contacting and interviewing the accused.
(6) Seeking the identification and location of witnesses.
(7) Providing written notification to the victim about the availability of, and contact information for, on- and off-campus resources and services, and coordination with law enforcement, as appropriate.
(8) Participation of victim advocates and other supporting people.
(9) Investigating allegations that alcohol or drugs were involved in the incident.
(10) Providing that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution’s student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.
(11) The role of the institutional staff supervision.
(12) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.
(13) Procedures for confidential reporting by victims and third parties.
(c) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall, to the extent feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students, including counseling, health, mental health, victim advocacy, and legal assistance, and including resources for the accused.
(d) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, empowerment programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the institution’s policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution’s overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy.
(e) Outreach programming shall be included as part of every incoming student’s orientation.

SEC. 2.
If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.

(27 ottobre 2014)

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