California Governor Signs ‘Affirmative Consent’ Bill

Yesterday, California Governor Jerry Brown signed into law SB 967, a bill that will require California’s university and college students to obtain verifiable “affirmative consent” for sexual activity. As FIRE has pointed out here on The Torch, under this bill students must receive not just explicit consent to sexual activity but ongoing consent—although it is impossible to tell how often students must pause to receive explicit consent in order for their sexual activity to qualify as consensual. The bill also codifies use of the “preponderance of the evidence” standard of proof, meaning that a student accused of sexual assault will be found guilty if fact-finders determine it is only slightly more likely than not that the accused committed assault.

FIRE released a statement on the bill in February, explaining how the bill will significantly hinder an accused student’s ability to receive a fair hearing, as well as additional analysis of the bill’s provisions. We are not alone in arguing that the bill is a harsh blow to due process rights on California campuses—other due process advocates have questioned, for example, whether people can possibly be expected to follow such a strict standard for communication during sex, much less demonstrate during a hearing that they have done so. (When asked how an innocent student could demonstrate he or she received affirmative consent, the bill’s co-author, Assemblywoman Bonnie Lowenthal, simply said, “Your guess is as good as mine.”)

In practice, the bill will shift the burden of proof to the accused student—and supporters of the bill have openly praised it for doing so. Students, though, should be very worried about lawmakers and college administrators adopting the idea that accused students are essentially guilty until proven innocent.