California ‘Affirmative Consent’ Bill Puts Colleges in Untenable Position

Colleges are in an increasingly untenable position when it comes to the sexual autonomy of their students, and the house of cards is going to come crashing down sooner or later.

Last week, the California State Senate approved SB 967, a bill that would require colleges receiving state-funded student aid to use an “affirmative consent” standard in their sexual assault policies. According to a report by the Associated Press:

Their policies must include an affirmative consent standard, which is defined as "an affirmative, unambiguous and conscious decision" by each party to engage in sexual activity. It also requires consent to be ongoing throughout a sexual activity.

So on the one hand, colleges and universities are being asked to closely monitor how students conduct their sex lives, sometimes to the point of ensuring not only that consent was present, but also that it was “affirmative and unambiguous” throughout the entire encounter. As the editorial board of the Los Angeles Times pointed out, “It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms.”

On the other hand, colleges and universities are expected to respect students’ autonomy, including their sexual autonomy, and to allow students to engage in sexual exploration. Colleges no longer act in loco parentis, and this extends to students’ sex lives.

Why does this matter to FIRE? On campus, due process means not just having policies and procedures followed fairly and correctly when they are applied, but also having policies and procedures that are not unfair on their face. Mandating affirmative consent, unfortunately, falls in the latter category, because in most cases it will be impossible for the accused student to prove he or she gained affirmative consent for sexual activity.

It’s already very difficult for courts (let alone college tribunals, which lack the experience or investigative tools of the legal system) to sort out whether a given sexual encounter was consensual in the traditional legal sense, which is part of what makes this issue so frustrating for both victims and the accused. But when it comes to whether or not a person gave “affirmative and unambiguous” consent continually throughout the entire encounter, there is unlikely to be any evidence at all other than the word of the people involved.

Further, it’s not even clear what constitutes “ongoing” consent “throughout” a sexual activity. What is the interval at which the participants should signify and/or request consent? FIRE has seen no sign that those advocating for affirmative consent on campus have made a serious effort to grapple with these concrete issues about how this concept will be fairly adjudicated when a hearing is called to order.

Essentially, there is an increasing and seemingly unresolvable tension between the degree to which the government holds colleges accountable for students’ sexual behavior and the degree of sexual autonomy colleges are expected to grant their students. Megan McArdle has provided a very eloquent summary of the problem:

On the one hand, colleges are supposed to treat their students as full-fledged adults who cannot be told where and when to drink, or with whom they can have sex … but we also want to say that colleges have the responsibility for ensuring that nothing bad ever happens.

[...]

We need to pick one. If college students are children, then the college should have much wider latitude to control and punish their behavior, including taking steps to prevent these assaults, such as requiring students to live in single-sex dorms where no one else is allowed to be and imposing strict consequences for being caught drinking.

FIRE agrees with McArdle’s ultimate conclusion that a return to in loco parentis is not the answer. This makes sense; colleges students are overwhelmingly adults. But this tension is going to reach a breaking point, and colleges are either going to begin demanding greater latitude to regulate students’ sexual behavior, or they are going to begin pushing back against increasing governmental efforts to hold them accountable for ensuring that every student sexual encounter is flawlessly executed.

Another problem with this bill is that it mandates the use of the judiciary’s lowest evidentiary threshold, the preponderance of the evidence standard, in campus sexual assault hearings. Under this standard, an accused student would be found responsible of serious wrongdoing if the fact-finder concluded that there was a mere 50.01% likelihood that the accusations were true. As FIRE has consistently argued, that might be fair if the proceedings also included the robust procedural protections one finds in actual courts (a legally trained judge, the right to discovery, the right to cross-examine witnesses, rules of evidence barring hearsay, witnesses under oath, the right to counsel, etc.), but campus judiciaries routinely and overwhelmingly lack these basic protections.

If this bill passes as written, accused students would bear the impossible burden of demonstrating that they repeatedly acquired unambiguous affirmative consent, and that question would be determined by fact-finders deciding simply which side they believe more by the most razor-thin of margins. This is a recipe for disaster that lawmakers in the California State Assembly need to consider when they evaluate this well-intentioned but poorly executed measure.

There is no question that colleges and universities have made a hash of handling claims of student sexual misconduct in ways that harm both the accused and the alleged victims. But requiring colleges to get more involved in micromanaging students’ sex lives by requiring them to assess not only the presence but also the quality of consent to a sexual encounter, and then to adjudicate those claims under the lowest evidentiary standard, is not the way to remedy this problem.