California: Affirmative Consent Bill Threatens Student Due Process

On September 28, 2014, California Governor Jerry Brown signed into law SB 967, a bill that requires California’s university and college students to obtain verifiable “affirmative consent” for sexual activity. 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.